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CO ■^/saMiNn3\\v^ %ojnvDjo'«^ '%ojiivd-jo^ ^J'judnvsoi^ ^lOSANCEUr^ v^lOSANCElfjv .5MEUNIVERJ/A ^OAavaaniv^ ' ^lOSANCEUr^ ^vMUBRARYOc. «^5S\EUNIVER% ^IDSANCEUr^ ^•UBRARY— 'P i- § >&Aavaani'^ "^(^Aavaan ' v/ya3AINft3VkV* ^tUBRARYOc. ^l-UBRARY(V aweuniver% ^.yOJIWDJO^ '^^OJIIVJJO'^ ^rjUDNVSOl^ %a3AiNn: it j^-lOSAKCElfx^ = g ■n <-J QC ^OFCAUFO% ^OFCAllFORi^ AWEI)KIVER% >&Aaviiaii# '^^^Aavaaii-i^ ^riuoNvsoi^ v^lOSANCE %a3AINrt- ^ ^^tUBRARYQA .^\^EUNIVER% o .^WEUmVERJ/A >^lOSAHCEUr>^ ^lOSANCElfx^ T- O »^ — (ft U cw > — d V 'J ■III' 33 3> so -< a,nMEUBRARY<3<- ^lilBRARYQ^ aWEUNIVER% vjclOSANCEl Ll. 3 /-^5o yssu vx/ \ vvv • VVV/l \/i/^/\/v A TREATISE ^UQ ON THE AMERICAN LAW OF ATTACHMENT AND GARNISHMENT A COMPLETE STATEMENT OF THE GENERAL PRINCIPLES APPLIED BY COURTS OF REVIEW AND OF THE COMMON RULES GOVERNING THE PRACTICE, UNDER ALL STATUTES BY ROSWELL SHINN Member of the Chicago Bar And Author of Shinn's Pleading and Practice IN TWO VOLUMES Volume I INDIANAPOLIS AND KANSAS CITY THE BOWEN-MERRILL COMPANY 1900 OOPYEIGHT 1896 BY THE BOWEN-MERRILL CO. PRESS OF CilELON & HOLLENBECK, INDIANAPOLIS. PREFACE. Attachment, including garnishment, has no precedent in the English common law. It is an outgrowth wholly of active mercantile life, from the demands of merchants, the provisions of statutes, and the sanction of the courts. Every state of the American Union has enacted laws upon the subject. These statutes often differ in minor particulars, but since they are designed to produce the same result in the same way, the ad- judicated law is an interwoven net-work of common law rules affording a substantial and summary (though extraordinary) redress against the wrongs of intentionally delinquent debtors. The similarity of attachment statutes makes unity of treatment possible. This is also desirable because the adjudicated law has an extra-territorial force not contained in the attachment statutes themselves. The decisions of courts have a universal application and power. Therefore an effort has been made herein to state the rules and principles of construction and procedure, of what may be appropriately termed the American Law of Attachment, including Garnishment, as the courts of the United States unite in interpreting and stating it, and no effort has been made to set out the separate statutory provisions, since the practitioner always has them in hand. The work has been prepared to supplement the statutes of every state without being a laborious reiteration of the statutes of either. It has been the purpose, by systematic arrangement of the subjects in their natural order, by minute analysis of each subject into sections and paragraphs, and by a full and com- plete index, to place the whole subject of attachment in such (vii) Viii PREFACE. form that any rule or principle can be easily found; and, when found, be susceptible of ready application. All the succeeding steps, from the contemplation of the pro- ceeding in attachment and garnishment to the final review on appeal, are treated in consecutive order. Minute attention has been given to the force and effect of the lien, and to priorities of the lien over other processes and deeds, together with the intervention and interplea of strangers claiming an interest in the attached property. There is also a somewhat lengthy chap- ter given indicating the extent to which judgment in garnish- ment will protect the garnishee from other suits. The rules relating to attachment by seizure, being statutory, are arbitrary, rendering a statement of them necessarily im- perious, but in relation to garnishment, in which a third party is brought, whose rights are guarded by the common law, the statement of the rules and principles governing in such cases will be found to be more philosophic and deductive. A statement has been made of the general j)rinciples which prevail throughout the United States, with rare exceptions, and where a diversity of judicial opinion has been found, that which is based upon logical reasoning has been given the preference and the conflicting opinion thereafter stated, the author believ- ing that correct reasoning must eventually prevail in all cases. March 1, 1896. Roswell Shinn. 1^ ., ., V TABLE OF CONTENTS. VOLUME L ATTACHMENT. CHAPTER I. ORIGIN, NATURE AND PURPOSE OF ATTACHMENT. PAGE. ... 1 §1. Origin of the remedy ••••• 2. Nature of the remedy -(a) It followed imprisonment for debt, to compel appearance ^ 3. (b) Is an ancillary or provisional remedy 3 4. (c) Has a twofold nature when there has been personal serv- 5 ace 5. (d) Is in the nature of a proceeding in rem when there has been no personal service 6. (e) Has no extra-territorial effect without personal service 8 7. (f) Is strictly a proceeding at law 9 S. (g) Is wholly statutory, in derogation of the common law, and its rules will be strictly construed 10 9. (h) Is an evolving remedy 1^ 10. Purpose of attachment— To create a provisional lien 12 11. The purpose and result of the many state statutes are uniform 13 CHAPTER II. WHAT DEMAND WILL SUPPORT THE ACTION. § 12. A demand for money— (a) General view of the subject 15 13. (b) Limitation of this treatise 1^ 14. (c) AVhat the term "debt" comprehends 17 15. (d) What is a " money demand " 20 (ix) C TABLE OF CONTENTS VOL. I. PAGE. § 16. ( e ) What is a demand " on contract " within the attachment law 21 17. (f) On contract made outside the state 25 18. (g) On contract to marry 26 19. (h ) On demand for damages unliquidated 26 20. (i) For debts not due 27 21. (j) On equitable demands 31 22. (k) On demands that have been sued upon 31 23. (1) On judgments and decrees i 32 24. (m) Not on a demand where other security exists 33 25. (n ) On landlord's or agricultural liens, and laborer's liens 35 26. (o) Not on a penalty 37 27. (p) On demand ex delicto 38 CHAPTER III. WHAT PROPERTY OR INTEREST MAY BE REACHED. §28. In general 43' 29. What personal property or interest therein — Generally 47 30. Money in specie, bank bills, stock certificates, etc 48 31. Wearing apparel, jewelry, etc 50 32. Crops 50 33. Chattels in the hands of an agent having no property therein ... 52 34. Chattels in the hands of a factor or agent with a property therein 54 35. Chattels still in the vendor's possession 55 36. Chattels in the hands of a fraudulent vendee 56 37. Chattels in a vendee's hands on a conditional sale 57 38. Chattels subject to a lien — (a) Generally 59 39. (b) Chattels in transitu 60 40. (c) Chattels in the hands of common carriers, warehousemen, collectors of duties, or other depositary 61 41. (d) Chattels in the hands of a bailee for hire 62 42. (e) Chattels held under pledge 64 43. (f) Chattels under mortgage 64 44. Chattels held by an assignee 67 45. Chattels held by a trustee 68 46. Chattels in the custody of the law 70 47. Chattels owned by a copartnership^(a) Generally 74 48. (b) For the firm debt, when the grounds for attachment have not arisen as to all the members 74 49. (c) For the individual debt of a copartner 78 50. (d) Of copartnership effects after insolvency or dissolution ... 81 51. (e) Of effects in the hands of a surviving partner 82 52. What real property or interest therein — Generally 82 53. Land previously conveyed 85 54. Land conveved in fraud of creditors 87 TABLE OF CONTENTS — VOL. I. XI PAGE. §55. Land held in trust ^^ 56. Land owned by one when consideration paid by another 88 67. Land owned jointly ^^ 58. Equities in land— Generally 90 59. Equity of redemption ^^ 60. Mortgagee's interest ^-^ 61. Legal title subject to the equity of redemption 92 62. Interest of legatees, devisees, reversioners, remaindermen et al. 93 63. Interest in land under contract to purchase 94 CHAPTER IV. WHAT PROPERTY MAY NOT BE ATTACHED. §64. Exempt property— (a) Generally 96 65. (b) Provisions for the family 97 66. (c) Wearing apparel 98 67. (d) Household furniture • 98 68. (e) Animals, in one's business or in support of the family 100 69. (f ) Tools used by mechanics and "implements of husbandry" 103 70. (g) Animals, tools, etc., used in public service 107 71. (h) Homestead and money received therefrom 108 72. Who entitled to exemption— (a) The head of a family 110 73. (b) Not a non-resident 1^1 74. How exemption obtained 112 75. Waiver of claim of exemption 114 CHAPTER V. PARTIES TO THE ACTION. 1. Parties Plaintiff. 2. Parties Defendant. §76. Plaintiffs— (a) Individuals, the matter, of residence 117 77. (b) Copartners, joint tenants, tenants in common et al 120 78. (c) Corporations 1^1 79. Defendants— (a) Individuals, generally 122 80. (b) Joint debtors 123 81. (c) Partners 12^ 82. (d) Tenants in common 126 83. (e) Heirs and representatives of deceased debtors 126 84. (f) Corporations..* 129 35. (g) Persons other than debtors— Interveners 133 xii TABLE OF CONTENTS VOL. I. CHAPTER VI. GROUNDS FOR ATTACHMENT. PAGE. §86. Generally 136 87. "Absent and absconding" debtors— (a) What comprehended by the term ^'absent." 137 88. (b) Who is an absconding debtor 140 89. (c) Who is a concealed debtor 144 90. "Non-resident" debtors— (a) "Residence" as contemplated by the attachment law 146 91. (b) Effect of temporary absence 149 92. (c) Effect of an intention to return 150 93. (d) Effect of an intention to remove 151 94. (e ) Effect of leaving family and going abroad 151 95. (f) Effect of the act of removing family and goods 152 96. (g) Acquiring residence elsewhere 152 97. (h) "Non-resident" although domicile in the state 153 98. (i ) Effect of doing business in the state while residing else- where 154 99. (j) Effect of doing business out of the state 155 100. When attachment will lie against one as a non-resident 155 101. Oath of affiant not conclusive of debtor's non-residence 157 102. Effect of defendant's residing in another part of the state when suit is begun 158 103. Effect of personal service upon the defendant within the state 158 104. Effect of non-residence of part of a firm and residence of the others 158 105. Non-resident or foreign corporations 159 106. "Removal of property," and same "with intent," or "to the injury of" the creditor 160 107. (a) Effect of an honest purpose 164 108. (b) Traverse of the allegation 165 109. (c) Fraudulent intent of one member of a copartnership 165 110. (d) Behef of the affiant not sufficient 166 111. Fraudulent disposal, secretion, or conveyance of property 166 112. (a) Acts that have been held sufficiently fraudulent within the attachment law 169 113. (b) Acts that have been held not sufficiently fraudulent within the attachment law '. 170 114. (c) When fraud will or will not be presumed 172 115. (d) How the fraud established 173 116. (e) The burden of proof 174 117. (f ) Alienation or delivery to wife or child 175 118. (g) Fraudulent assignment or transfer of property 176 119. (h) Effect of threats to convey, assign, etc 177 TABLE OF CONTENTS VOL. I. XIU PAGE. §120. (i) Preference of creditors not alone suflacient fraud 178 121. ( i ) Confession of judgment not alone sufficient fraud 179 122. (k) Giving a mortgage is not alone sufficient fraud 179 123. ( 1 ) Fraudulent secretion of money and property— Fraudulent statement regarding finances 1^1 124. (m) Fraudulent disposition of partnership property 182 125. Fraud in contracting tlie debt ^^^ 126. (a) Debt criminally contracted 1^^ CHAPTER VII. THE AFFIDAVIT. § 127. Purpose and necessity of affidavit 1^7 128. When it should be made 1^^ 129. By whom to be made 1^^ 130. Before whom to be made l^*^ 131. Formal parts of the affidavit • 1^^ 132. Necessary averments, generally 205 133. Averment of indebtedness— (a) Effect on the judgment 211 134. (b) When variance fatal ••••• 213 135. (c) Must be in positive terms ; not on information and behef . 214 136. (d) Of " justly indebted " 217 137. (e) Of debt "due" 219 138. (f) As near as may be 220 139. (g) " Over and above " set-offs, counter-claims, etc 221 140. (h) Of the " Nature " of the indebtedness 224 141. (i) Copy of instrument sued on— production of note, etc 228 142. Averment of grounds for attachment 229 143. (a) Where the averment of a fact alone in the affidavit is suf- ficient—The ofiicer acting in a ministerial capacity 231 144. (b) Where affidavit must contain evidence to establish ground for attachment— The officer acting in a judicial capacity.... 232 145. Of several grounds 236 146. By alternative statement— use of the disjunctive conjunction "or." 238 147. Of absconding and concealed debtors 240 148. Of non-residence of defendant . 243 149. Of removal of property or self 248 150. That debtor is " about to conceal, assign, or dispose of his prop- erty," etc 251 151. That debt was fraudulently contracted 259 152. Amendment of the affidavit 261 CHAPTER VIII. THE BOND. , §153. Object and necessity of the bond 270 154. When the bond must be executed and filed 271 xiv TABLE OF CONTENTS VOL. I. PAGE. §155. Formal requisites of the bond— (a) Generally 275 156. (b) Title court 276 157. (c) Title cause 276 158. (d) The date 276 159. (e) The signing 277 160. (f) The seal 278 161. Eecitations of conditions— (a) Names of parties, etc 278 162. (b) Must show whose and what property attached 282 163. Amount or penalty of the bond 282 164. (a) Interest to be included, when 284 165. (b) Application of the rule de minimis non curat lex 285 166. (c) Order of court to increase the amount 285 167. Parties to the bond, generally— (a) Obligors 285 168. (b) Obligees 286 169. (c) Plaintiff executing the bond as principal obligor 287 170. (d) Agent or attorney executing the bond in plaintiff's name as principal obligor 288 171. (e) Agent or attorney executing an individual bond as princi- pal obligor 291 172. (f ) TTse of partnership name in executing the bond 292 173. (g) The sureties on the bond — Generally 293 174. (h) "Who may be a surety on the bond 294 175. (i) Surety must be sufficient 295 176. Approval of the bond by the clerk 296 177. Failure to give sufficient bond — Who, how and when to object be- cause thereof 298 178. Waiver of objection to insufficiency of bond 300 179. Amendment of the bond 301 180. (a) Effect of an amendment 303 181. Discharge of the bond 304 182. Action on the bond— (a) " Debt," " covenant," "trespass" or "case" 305 183. (b) When the action accrues 308 184. (c) Must be damages to sustain the action — Malice unneces- sary 313 185. (d) Plaintiff to action on bond 315 186. (e) Parties defendant to action on bond 316 187. (f) The pleading in an action on the bond 318 188. (g) Proof in action on bond 325 189. (h) Record in the attachment suit as evidence in the suit on the bond , 332 190. (i) The recovery in an action for wrongful attachment 334 TABLE OF CONTENTS VOL. I. XV CHAPTER IX. THE WRIT. PAGE. § 191. The purpose of the writ 345 192. When the writ to be issued 347 193. Where the writ to issue 350 194. By whom to be issued 351 195. Order in which several writs must issue 353 196. Necessary formahties of the writ 353 197. Amendment of the writ 362 198. To whom issued and dehvered — Several writs — Alias writs 366 199. Effect of the writ 367 CHAPTER X. THE EXECUTION OF THE WRIT. Levying on the Property. § 200. The purpose of the levy 369 201. What officer to make the levy 371 202. Officer's duty to make the levy 374 203. Officer may require bond of indemnity, when 378 204. Officer protected in his official acts 379 205. When the officer should make the levy 381 206. The amount of property to be secured by levy 384 207. The manner in which the levy should be made— (a) Generally 387 208. (b) On property susceptible of manual delivery 399 209. (c) On property not susceptible of manual delivery 403 210. (d) On chattels intermixed with those of a stranger 407 211. (e) On property owned jointly or in common with a stranger. 409 212. (f) On mortgaged property 411 213. (g) On exempt property 413 214. (h) Onland 414 215. Levy of ancillary attachment — "Attachment in aid" 418 Summoning the Defendant — Constructive Service — Publication. 216. Necessity of service or constructive service 421 217. The purpose of publishing notice 424 218. As to the publication itself 428 219. Other acts than publication necessary— Mailing, posting and filing notices — Inventory 431 220. Publication and other required acts must appear upon the record to have been performed 438 221. The extent to which errors in the levy and personal service are waived by appearance 439 222. Amendment of the service of the writ 443 K\l TABLE OF CONTENTS VOL. I. CHAPTER XI. RETURN OF THE WRIT. PAGE. § 223. Necessity of the return 445 224. By whom the return must be made 448 225. Where the return must be made 449 226. The return becomes matter of record, and can not, in general, be contradicted 449 227. Return, evidence in suit by or against officer making it 451 228. When return should be made 453 229. Formal parts of the return — (a) ^lust state what acts were done.... 456 230. (b) Must state when the acts constituting the service were per- formed 460 231. (c) Must contain description of the property attached and its location— Schedule or inventory 460 232. (d) Same— Second attachment.... 467 233. (e) Statement of the value of the property seized 467 234. (f) Should state that property attached is the property of the defendant 468 235. (g) Should be dated 470 236. (h) Should be signed 471 237. Presumptions favoring the return 472 238. Amendment of the return — (a) Generally 474 239. (b) When the amendment may be made 476 240. (c) No amendment permitted that will affect intervening title or interest of a third person 478 241. (d) What errors may be corrected by amendment 480 242. (e) Effect of amendment of return 481 CHAPTER XII. POSSESSION OF ATTACHED PROPERTY. Part I. Possession by Sheriff. §243. Nature, purpose and effect stated generally 483 244. Possession must be actual, visible and notorious 483 245. Apparent exceptions to the rule 484 246. Officer can not retain possession of tenement in which personal property is found 484 247. Character of the officer's possession 485 248. The acquiring of a special title by the officer does not change the ownership 486 249. Possession of property held by tenants in common, copart- ners, etc 486 TABLE OF CONTENTS VOL. I. XVii PAGE. §250. Duration of sheriff's title and possession 487 251. Degree of care required from the sheriff 488 252. Consequence of officer's neglect to take due care 489 253. Officer may release his possession when 489 254. Possession when sheriff's term of office expires 490 255. Effect of intermixing goods with others of the same kind 490 256. Abandonment — Relinquishment of possession 491 257. What has been held to be an abandonment 492 258. What has been held not to be an abandonment 493 259. When officer forced to part with possession there is no abandon- ment 495 260. After an abandonment the property is liable to a second attach- ment 496 261. Action for interference with officer's possession 497 262. Officer's disposition of perishable property 500 263. Expenses incurred in keeping the property— Compensation of the officer 504 Part II. Possession by Agent of the Sheriff. 264. Officer's power to appoint by agent 507 265. Nature of the receiptor's possession 509 266. Who may becomea receiptor or bailee 511 267. Contents of the receipt 512 268. Effect of mentioning in the receipt the value of the property at- tached 512 269. Abandonment by bailee dissolves attachment— What is such an abandonment 514 270. Receiptor not under control of creditor 516 271. Continuation of officer's liability for acts of receiptor 517 272. When liabihty of officer, who has delivered to a receiptor, ceases. 517 273. Officer may at any time demand property delivered on receipt 519 274. Action against the receiptor and on the receipt— (a) Nature of the action — When it will lie 520 275. (b) When the action will not lie 522 276. (c) When demand is necessary' before bringing suit 524 277. (d) Return of property on demand ends receiptor's liability .. 527 278. (e) When demand is not necessary before bringing suit 528 279. (f) Who may maintain the action against a receiptor 529 280. (g) Form of the action 530 281. (h) Pleading in the action 532 282. (i) Proof necessary to sustain the action 532 283. (j) Proof in defense of the action 533 284. (k) Judgment in an action against receiptor 539 285. Fees and costs of bailees 540 Xviii TABLE OF CONTENTS VOL. I. CHAPTER XIII. RELEASE OF POSSESSION OF ATTACHED PROPERTY. Part I. By Bond to Deliver Property. PAGE. §286. Of bonds, generally 541 287. Sufficiency of delivery or forthcoming bond 544 288. Effect of the bond 550 289. Return of the bond 554 290. Compliance with the covenant to return.. 554 291. When liability of the surety on the bond begins 556 292. When the liability of the surety on the bond is discharged 558 293. Rights of sureties on forthcoming bond 564 294. Action on a delivery bond— (a) When it accrues 565 295. (b) Necessity of fi. fa. or "rule to show cause." 567 296. (c) Where the action shall be brought 568 297. (d) Parties to the action 568 298. (e) Plaintiff's pleading in the action 570 299. (f) Evidence to sustain the action 571 300. (g) Defense to the action 573 301. (h) Judgment in action on forthcoming bond 580 Part II. By Bond to Pay Judgment. 302. General nature of the bond, and defendant's privilege in regard thereto. 583 303. Sufficiency of the bond to pay judgment 585 304. Effect of the bond to pay judgment 590 305. When the Uability of surety on bond to pay judgment begins 593 306. What will discharge the surety on the bond to pay the judgment.. 596 307. Action on the bond to pay judgment— (a) Generally 597 308. (b) Form of the action 598 309. (c) Parties to the action 599 310. (d) Plaintiff's pleading and proof in the action 599 311. (e) Defense to the action 601 312. (f ) Damages in an action on bond to pay judgment 602 CHAPTER XIV. THE LIEN CREATED BY ATTACHMENT. §313. Generally 604 314. No lien is created until a levy is made 605 315. The same rule applies to real estate 607 316. The lien extends only to property levied upon 609 317. The lien limited to the amount specified in the affidavit and writ.. 610 TABLE OF CONTENTS^ — VOL. I, xix PAGE. § 318. The lien can not be superior to the debtor's right in the property at the time of the levy 611 319. The lien is not affected by subsequent alienation of the attached property 612 320. The lien a sufficient interest to contest a fraudulent judgment or conveyance 613 321. The lien may be protected by removing adverse claims 616 322. The lien can be destroyed only by dissolution of the attachment... 617 323. The lien is merged into a judgment for the plaintiff 619 324. The lien is continued when an appeal is taken from a judgment for the defendant 621 325. To protect the lien a demand on the judgment must be made 621 CHAPTER XV. DISSOLUTION OF ATTACHMENT. §326. Dissolution by incidental acts and omissions — (a) Generally 624 327. (b) By giving security in different ways 625 328. (c) By alteration in the writ 625 329. (d) By delivering the attached property to the debtor, i. e., abandonment... 626 330. (e) By substitution of parties 626 331. (f) By insolvency or bankruptcy of the debtor 627 332. (g) By death of a defendant 628 333. (h) By judgment in favor of the defendant 630 334. (i) By judgment of non-suit; or by excessive judgment 630 336. (j) By personal judgment alone for plaintiff; or by not in- cluding portion in order of sale 631 336. (k) By failure to demand property within the time required by statute 631 337. (1) By failure to sell as directed by statute 631 338. Dissolution because of irregularities — (a) Generally 632 339. (b) Because of insufficiency of the affidavit 632 340. (c) Because of insufficiency of the bond 633 341. (d) Because of insufficiency of the writ 634 342. (e) Because of insufficiency of the service and return 635 343. Motion to dissolve attachment for irregularities— (a) Who may entertain it 636 344. (b) Who may move the court to dissolve an attachment 637 345. (c) When the motion must be made — Waiver 641 346. (d) Notice of motion 643 347. (e) Essentials of the motion— Opposition thereto 644 348. Dissolution by denial of plaintiff's right to attachment— (a) Gen- eral principles 645 349. (b) How such denial interposed 646 350. (c) Who may question the right to attachment 647 XX TABLE OF CONTENTS VOL. I. PAGE. §351. (d) "When denial may be interposed 648 352. (e) Trial of issues raised by denial of grounds of attachment.. 648 353. (f) Evidence— Burden of proof 649 354. Judgment dissolving attachment— Effect thereof 656 355. Review of order dissolving attachment— Effect of reversal 659 356. Amendment pending proceedings to dissolve an attachment 661 CHAPTER XVI. LIABILITY OF PLAINTIFF BEYOND THE COVENANTS OF THE BOND. Part I. Liability for Mere Wrongful Attachment— Actual Damages. §357. Plaintiff's liabihty, generally 664 358. Plaintiff liable as a wrong-doer to other action than on the bond.. 664 359. Plaintiff liable as a tort-feasor when no grounds for attachment exist 665 360. Plaintiff liable in tort though there be grounds for attachment 666 361. Liable in what form of action 669 362. Liable for trespass of officer when 670 363. Liable for acts of his attorney 672 364. Liable jointly with attaching officer 672 365. Liable jointly with other creditors 672 366. When the cause of action accrues 673 367. Pleading in action for mere wrongful attachment 675 368. Proof in actions for the recovery of mere actual damages occa- sioned by wrongful attachments 676 369. Measure of damages in actions for mere wrongful attachments 678 Part II. Liability for Malicious Attachment — Punitive Damages. 370. Nature of the action, and by what supported 681 371. Probable cause — Definition of and necessity for 682 372. Malice, and how established 684 373. Advice of counsel as evidence of probable cause and in negation of malice 686 374. Not liable for malicious act of agent 688 375. When the action may be begun 689 376. Pleadings in the action 690 377. Damages recoverable— (a) When exemplary damages and when only actual damages 692 378. (b) Costs and attorney's fees 693 379. (c) Loss of credit or damage to business 693 380. What may be shown in defense of the action— (a) That the attach- ment proceedings are still pending 695 381. (b) That the attachment was not without probable cause 695 382. (c) That the attachment was not mahciously sued out 696 383. (d) Proof in mitigation of damages 697 TABLE OF CONTENTS VOL. I. XXI CHAPTER XVII. LIABILITY OF THE EXECUTIVE OFFICER. PAGE. § 384, Liability generally of executive otficer and his sureties 699 385. Liability for acts of his deputy 703 386. Liability for breach of duty regarding levy— (a) For improper or untimely seizure 705 387. (b) For seizure under writ against third party 710 388. (c) For seizure of exempt property 715 389. (d) For seizure of property in custody of law 716 390. (e) For failure to levy as directed 717 391. Liability for breach of duty regarding return 719 392. Liability for breach of duty regarding custody of attached property 723 393. Liability for breach of duty regarding release of property on tender of bond 727 394. Liability for failure to return money into court 728 395. Liability to defendant for failure to return property on dissolution of attachment 729 396. Liability for failure to properly apply chattels on execution 731 397. Liability for failui-e to account for proceeds of sale 735 398. Liability for expense of keeping the property pending suit 737 399. Defenses to actions brought by third persons 738 400. Extent of liability— Judgment 740 CHAPTER XVIII. PRIORITIES. Part I. Prionties Between Attachments. § 401. How priorities determined 742 402. Priorities not favored 743 403. No priorities in some states at same term of court 744 404. General rule: First valid levy takes prior lien 745 405. Exceptions to the rule 747 406. Amended irregularity preserves priority 749 407. Stay of proceedings preserves priority 751 408. Successive attachments — Rule 751 409. Simultaneous attachment — Rule 755 410. Fraudulent attachment 756 411. Junior attaching creditors' remedies 758 Part II. Priorities Betioeen Attachments and Other Processes and Deeds. 412. Existing title or lien has priority over attachment 762 413. When prior judgment is a lien 764 414. When prior execution is not a lien 764 Xxii TABLE OF CONTENTS VOL. I. PAGE. §415. When chancery process takes priority 765 416. When distress warrant takes priority 766 417. When unrecorded deed gives prior hen 766 418. When prior unrecorded mortgage gives prior lien 769 419. When transfer of corporate stock gives priority 770 420. When incomplete sale of chattels gives priority 771 421. When subsequent purchaser has prior title 772 422. When trustee has prior title 773 423. When assignee has prior title 774 424. When receiver has priority 775 425. When attachment is prior to deed of legatee or distributee 777 CHAPTER XIX. INTERVENTION. {Interplea. ) § 426. Nature of the proceeding 778 427. Who may intervene 780 428. When claimant may intervene 784 429. What issues may be determined by intervention 786 430. Where the issue on intervention to be tried 788 431. When issue on intervention to be tried 789 432. How to intervene — (a) Notice to officer or attaching creditor 790 433. (b) Petition-Affidavit 791 434. (c) Bond 793 435. Parties defendant 795 436. Answer or replication to intervener 795 437. Proof 796 438. Instructions to the jury 798 439. Findings— Verdict 800 440. Judgment — Damages — Costs 801 CHAPTER XX. INCIDENTAL MATTERS OF PLEADING AND PRACTICE. § 441. General rules can not be formulated — (a) Concerning the declara- tion or complaint 804 442. (b) Concerning entry and notice of appearance 806 443. (c) Concerning an affidavit of merits 807 444. (d) Concerning demurrers 807 445. (e) Concerning pleas in abatement 808 446. (f) Concerning "traverse," "pleas to the merits" or plea in bar of the action 809 447. Plaintiff may continue suit after assignment 810 448. Where jury trials in attachment to be had 810 TABLE OF CONTENTS VOL. II. XXlll CHAPTER XXI. JUDGMENT, EXECUTION AND SALE. PAGE. 811 §449. When judgment to be entered 450. General personal judgment r"'*"i^" 451. Special judgment perfecting lien and condemning property to be ^^^ sold g^g 452. Effect of the judgment ^^^ 453. Form of the judgment 454. Execution— When to be issued 455. Sale and title conveyed thereby ^^^ 456. Distribution of proceeds CHAPTER XXII. REVIEW OF ATTACHMENT PROCEEDINGS. 823 §457. Generally g2g 458. By supersedeas 459. By appeal 460. On writ of error— Bill of exceptions °^^ 461. By bill of review • g^g 462. By writ of certiorari 463. By petition to vacate judgment 464. By petition to vacate thesale VOLUME II. GARNISHMENT. CHAPTER XXIII. DEFINITION, NATURE, SCOPE AND EFFECT OF GARNISHMENT. 831 §465. Definition 466. An anomalous proceeding 467. Wherein garnishment differs from attachment »<5'* 468. Same— Land not generally subject to garnishment 835 469. When garnishment a suit Xxiv TABLE OF CONTENTS VOL. II. PAGE. § 470. Necessarj' parties 838 471. Position occupied by the garnishee — (a) Stakeholder or custodian 838 472. (b) Defends only himself 839 473. (c) Is not protected by principal defendant 840 474. (d) Chargeable only for what he owes or holds 840 475. Nature of demand which must exist between debtor and garnishee — (a) Must be a cause of action at law 841 476. (b) Must be indebted or have personal property in possession susceptible of seizure on execution 842 477. (c) Custodian of choses in action is not "indebted" — Neither are they chattels in possession 845 478. (d) A judgment is a debt 846 479. (e) A debt is not changed in its nature because of suit pend- ing thereon 847 480. (f) Must be a debt due or to become due absolutely 847 481. (g) Must not be contingent or affected by existing liens 848 482. (h) Must be a demand that will support an action of "debt" or "indebitatus assumpsit" 849 483. (i) Must not be a claim arising from tort — Unliquidated dam- ages 850 484. When no demand exists — Property possessed through fraud 850 485. Garnishment wholly a statutory proceeding — Can not be aided by garnishee 851 486. Legal rights and not equitable rights subject to garnishment 852 487. Effect of garnishment process 853 488. Same — No bar to a regular action on same demand 855 CHAPTER XXIV. WHO MAY BE HELD AS A GARNISHEE. § 489. The question determined by what is necessary to give the court jurisdiction 857 490. The general rule stated 858 491. Non-residents 860 492. Corporations— (a) Generally 862 493. (b) Foreign corporations 863 494. (c) Same — Being within the state not sufficient 864 495. (d; Same — Liable though both plaintiff and defendant non- residents 866 496. (e) Same — Agent or officer having possession as such can not be held as garnishee, 866 497. (f) Same— Special fund or property pledged can not be held liable in its possession 867 498. Corporations— For stock of a member 868 499. Subscribers for stock in corporations 870 500. Not municipal corporations — (a) General rule 872 TABLE OF CONTENTS VOL. II. XXV PAGE. §501. (b) Application of the rule 874 502. (c) Objection— How raised— May be waved 875 503. (d) Nor an officer having control of fund 876 504. (e) Debtors of municipal corporations may be held except for taxes 877 605. Not public officers— (a) Generally 878 506. (b) Liable when official duty ceases 881 507. (c) Liable for surplus retained ■ 882 508. (d) Liabihty for property of prisoner, when 882 509. (e) Liable for funds deposited in his own name, when 883 510. Executors and administrators— (a) The old rule 883 511. (b) The new rule 884 512. (c) Representatives must be summoned as such 887 513. Guardians 887 514. Other officers and representative persons 888 CHAPTER XXV. EFFICIENCY OF GARNISHMENT. §515. In case of sole indebtedness 890 616. (a) Determined by contract relation between garnishee and principal debtor 893 517. (b) Contract must be legal 895 518. In case of partnerships— (a) Generally 896 519. (b) On a demand against an individual member 897 520. (c) Indebtedness to a firm has priority over indebtedness to a member 898 521. (d) Insolvency of firm defeats attachment of a partner's interest 899 522. (e ) When a partner may be a garnishee in an action against the firm 899 523. (f ) A debtor of a member may be a garnishee in an action against the firm ^^^ 524. In case of joint debtors— (a) When owing jointly must be jointly charged ^^^ 525. (b) When not owing jointly must not be jointly charged 901 526. (c) Writ should describe them as "jointly" liable 902 527. (d) The writ must issue in an action against the identical persons to whom the garnishees are indebted 902 528. (e) Effect of death of the joint debtor 903 529. In case of marriage ^^* 530. In case of infancy ^^^ 531. When effects held in trust— (a) Generally 906 532. (b) Executors and administrators as trustees 911 533. (c) Trustee charged with support of an individual 912 534. When effects have been assigned— (a) No longer the property of the assignor 91* XXVi TABLE OF CONTENTS VOL. 11. PAGE. §535. (b) Can not be secured to satisfy his debt 915 536. (c) Equitable interest will be protected from garnishment 915 637. (d) Same — Assigned choses in action can not be reached by assignor's creditors 916 638. (e ) Assignment binds garnishee though he have no notice till after service of process 918 639. (f) Notice prior to judgment necessary 919 640. (g) Any notice suflBcient before service of garnishment 920 641. (h) Answer must show assignment 921 642. (i ) Assignees for benefit of creditors can not be made gar- nishees 921 643. (i) Assignment made in another state 923 644. (k) Assent of creditor^Necessity and effect thereof 923 646. (1) Garnishment will reach surplus only 924 646. (m) Garnishment efficient when assignment fraudulent 924 647. When effects held by a receiver 927 CHAPTER XXVI. EFFICIENCY OP GARNISHMENT CONTINUED. §548. When applied to agents or servants — (a) General rules 930 549. (b) Agent charged to perform special acts 932 550. (c) Sub-agent not liable — Must be both privity of contract and privity of interest 933 661. (d) Agent casually within the state not liable 934 652. (e) Possession by agent makes principal liable as garnishee... 934 653. When applied to attorneys 934 554. Same — Attorney for plaintiff should not be garnishee 936 555. When applied to employer — (a) Wages and salary generally 937 556. (b) Not when wages or salary assigned 941 657. (c) Not for wages exempt by statute 942 658. (d) Who is a "laborer" and what is "wages" within the mean- ing of the law 944 669. (e) Non-resident laborers entitled to exemption 946 560. (f) Garnishee must claim exemption for laborer 947 561. (g) Exemption may be defeated by claim for necessaries 948 562. When debt evidenced by note or bill — Generally 948 563. As to non-negotiable instruments 949 564. As to negotiable instruments — (a) Rule requiring them to be owned by the payee 950 665. (b) Rule requiring them to be due 951 666. (c ) Rule not requiring them to be due 952 567. (d) Effect of assignment upon garnishee 955 668. (e) Effect of endorsement upon garnishee 956 669. (f) Effect of notice to the maker — The garnishee 957 670. (g) Must be payable in money 958 TABLE OF CONTENTS VOL. II. XXVll PAGE. §571. (h) Must be payable in the state 959 572. (i ) Must not be due upon contingency 959 573. (j ) Notes held as collateral security 960 574. As to accepted drafts 960 575. As to corporate bonds ;••• 961 576. A mere custodian of a note or bill can not be held as a garnishee... 962 577. When contract of bailment exists— (a) Accommodation bailees... 964 578. (b) Bailees for hire 965 579. When funds deposited in bank— (a) Generally 968 580. (b) When deposited by one as "agent" or other fiduciary 969 581. (c ) As to funds transferred to a bank as collateral security 972 582. (d) As to checks drawn before service and presented after 972 When funds placed in safety deposit vaults • 973 583. . . - 584. When debt secured by mortgage, or property held as indemmty- (a) Generally ^^'^ 585. (b) Surplus only can be reached 975 586. (c) Only when possession taken 978 587. (d) In case mortgage invalid 979 588. Fraudulent vendee in possession. 980 589 When directed against a judgment debtor • 981 590. When suit pending between principal defendant and garnishee... 983 CHAPTER XXVII. THE PROCESS AND ITS OPERATION. §591. Preliminary steps to procure it— (a) The necessary affidavit 986 592. Same— Must comply with the statute 987 593. Same— Must state indebtedness over and above exemptions, etc... 988 594. Same— Must state the nature of the contract • 988 595. Same— Must aver residence of parties or domicile of corporation.. 989 596. Same— Must be sworn to by affiant 990 990 598. (b) The bond ^'^^ 599. The writ and the form thereof-(a) Generally 992 600. (b) Grounds on which to be issued 992 601. (c) Separate writ, when necessary 993 602. 603. 604. (f ) The seal and attestation 597. Same— Objections, how raised— Amendment. (d) Style and direction of the writ 994 fe) Body of the writ— Recitation 994 ^ 996 Informahties of the writ, effect thereof 99/ 605. 606. Service of the writ— (a) Generally 607. 997 (b) Service upon the principal defendant 998 1000 608. (c) Personal service upon garnishee necessary. 609. (d) What constitutes personal service 1003 610. (e) Appearance does not give jurisdiction lOOo 611. (f) Officer's return l^^^ XXVni TABLE OF CONTENTS VOL. II. PAGE. §612. (g) Custody of the property 1008 613. Effect or operation of garnishment 1010 614. Priorities of garnishment 1013 615. Dissolution of writ by bond 1016 616. Effect of death of garnishee 1017 CHAPTER XXVIII. THE ANSWER, ITS CONTENTS AND EFFECT. § 617. Origin and necessity of answer „..1018 618. FormaUties of the answer — Oath, signature, seal 1020 619. Who to make the answer 1021 620. Preparation of the answer 1022 621. The function of the answer 1023 622. What answer must state — (a) Generally 1024 623. (b) Must state garnishee's defenses 1024 624. Same— Regarding off-set 1027 625. (c) Must state what is due 1031 626. (d) Must state where payable 1033 627. (e) Must disclose existing liens 1034 628. (f) Most show assignment 10.36 629. (g) Must show exempt character of credits or effects 1038 630. (h) Statement on information and belief 1040 631. Interrogatories and answers thereto 1041 632. Documents appended to answer 1043 633. Amendment of the answer 1044 634. Interpretation of the answer — (a) Construed most strongly against the garnishee 1047 635. (b) Will be considered as a whole 1049 636. (c) Will be accepted as true 1050 637. (d) Default intei-preted as an admission of indebtedness 1051 638. Effect of the answer — (a) Generally 1053 639. (b) Does not of itself discharge garnishee 1054 640. (c) Admission of indebtedness will warrant a judgment for plaintiff 1055 641. (d) Denial of indebtedness will defeat a recovery by the plaintiff 1057 642. (e) Denial of " debt " stops proceedings where no personal service 1058 643. (f) Showing uncertainty of indebtedness discharges garni- shee 1059 644. (g) Special contract subjects plaintiff to its terms 1061 646. (h) Showing joint .indebtedness when defendant is sole and vice versa 1061 646. (i) Effect of answer when proceedings irregular — Waiver 1062 TABLE OF CONTENTS VOL. II. XXIX CHAPTER XXIX. PROCEEDING WHEN ANSWER WANTING OR UNSATISFACTORY. PAGE. § 647. When garnishee fails to answer — (a) Generally 1064 648. (b) Scire facias — Summons to show cause, etc 1065 649. (c) Return of writ duly served and default of the same will sustain judgment 1065 650. (d) An issue may be raised on .sciVe/acias 1066 651. When answer unsatisfactory — (a) Generally 1068 652. (b) When, only, an issue can be raised 1070 653. (c) When an issue must be raised or the garnishee dis- charged 1070 654. (d) How the issue to be raised 1071 655. Same— Further interrogatories 1074 656. Nature of the issue 1076 657. The evidence on issue — (a) The burden of proof 1078 658. (b) The answer as evidence 1080 659. (c) Previous statements of the garnishee 1081 660. (d) The garnishee's defenses 1082 661. Supplemental or amended answer 1086 662. Judgment on trial of traverse 1087 663. Same— Costs 1087 CHAPTER XXX. defendant's POSITION IN THE GARNISHMENT. §664. Generally 1089 665. May plead dilatory pleas 1090 666. May plead in bar 1091 667. Time in which he may plead 1092 668. May claim exemptions 1092 669. Denial of garnishee's answer 1093 670. May review judgment against garnishee 1094 CHAPTER XXXI. INTERPLEA IN GARNISHMENT. § 671. Necessity for bringing in the claimant 1095 672. Summoning or citing the claimant 1096 673. The duty cf the plaintiff 1098 674. The issue on the interplea 1099 675. When, where and how the issue should be tried 1100 676. The evidence — Burden of proof 1101 677. The judgment— Costs 1102 XXX TABLE OF CONTENTS VOL. II. CHAPTER XXXII. JUDGMENT IN GARNISHMENT. PAGE. §678. Record of— (a) Separate from judgnient in principal action 1104 679. (b) Must show that court had jurisdiction 1105 680. No judgment unless prior steps be valid and sufficient 1107 681 No judgment against garnishee before judgment against defend- ant 1109 682. Same— Effect of death 1112 683. Judgment by default— Judgment 7iisi 1114 684. Judgment on scire facias • mS 685. Judgment charging garnishee— (a) On answer showing liability. ..1120 686. (b) When a fund— The amount 1122 687. (c) When property— The surrender 1124 688. (d) W^hen upon note in circulation 1125 689. (e ) When interest to be included 1125 690. (f ) When indebtedness not yet payable 1126 691. (g) Regarding the form of the judgment 1127 692. (h) Regarding personal judgment 1130 693. (i ) Regarding liability to the defendant and another 1131 694. Judgment discharging the garnishee 1132 695. Judgment in garnishment not a lien 1133 696. Judgment gives plaintiff the rights defendant had 1134 697. Judgment on bond given to dissolve garnishment 1135 698. Costs, for or against the garnishee 1136 CHAPTER XXXIII. REVIEW OF GARNISHMENT. §699. Motion for new trial— reopening case 1139 700. Appeal by the plaintiff 1142 701. Appeal by the deiendant— Certiorari 1144 702. Appeal by the garnishee 1145 703. Appeal by the claimant 1147 704. Pending an appeal the garnishee remains before the court 1148 705. Objections in the appellate court 1148 706. Collateral attack on judgment 1149 CHAPTER XXXIV. garnishee's PROTECTION FROM OTHER SUITS. § 707. Judgment of a court having jurisdiction protects the garnishee 1150 708. Judgment on a void garnishment is no protection to the gar- nishee. .1152 TABLE OF CONTENTS VOL. II. XXXI PAGE. §709. Judgment sometimes equivalent to payment 1153 710. Payment in good faith on a judgment not void protects the gar- nishee 11^^ 711. Same — Payment must be compulsory, not voluntary 115-t 712. Same— Payment into court protects garnishee when done by order of court H^^ 713. Payment in good faith on voidable judgment protects garnishee....ll56 714. Payment no protection when debt evidenced by negotiable note in circulation 1158 715. Judgment before notice of assignment protects garnishee 1159 716. Judgment without notice of assignment is no protection 1160 717. Judgment no protection to an acceptor of a draft or order 1161 718. Judgment no defense when exemption not claimed 1162 719. Judgment no protection when rights of others not shown 1162 720. Judgment no protection when entered upon a willful default 1163 721. Extent to which pending suit protects the garnishee 1164 722. Judgment in another state is a protection 1166 723. Judgment no protection unless an execution may be issued 1168 724. Judgment not conclusive of amount of indebtedness to defendant.. 1168 725. Judgment discharging garnishee no defense to suit by defendant..ll69 726. Judgment protects garnishee from further liability at suit of the plaintiff 11"0 727. Judgment no protection against a suit by other persons— Excep- tions 1170 CHAPTER I. ORIGIN, NATURE AND PURPOSE OF ATTACHMENT. § 1. Origin of the remedy . § 6. (e) Has no extra-territorial ef- 2. Nature of the remedy, (a) Fol- feet without personal service. lows imprisonment for debt, 7. (f) Is strictly a proceeding at to compel appearance. law. 3. (b) Is an ancillary or provision- 8. (g) Is wholly statutory, in der- al remedy. ogation of the common law, 4. (c ) Has a twofold nature when and its rules will be strictly there has been personal serv- construed. ice. 9. (h) Is an evolving remedy. 5. (d) Is in the nature of a pro- 10. Purpose of attachment— to ceeding in rem when there create a provisional lien, has been no personal serv- 11. The purpose and result of the lf.Q many state statutes are uni- form. § 1. Origin of the remedy. — ^The attachment laws of the United States, while unlike in many particulars, are yet so similar as to show a common source and permit of general classification and some united treatment under the generic name of American Law of Attachment. In seeking the source of our attachment law we find an an- cient Roman practice, whereby the effects of a debtor, who had secreted himself at home to elude prosecution, were appropriated to the satisfaction of his debts, three efforts having been made to summon him and he having not appeared.' This is sup- posed to be the origin of what we find later to have been the custom of foreign attachment in London.' A strange feature of the London custom, however, was that while the ''plaint" must be returned nihil before the plaintiff could have garnish- ment, yet the very essence of the custom was that the defend- 1. Adams Roman Antiquities (WW- 2. Locke on Foreign Attachment, son), 194. XVI. (1) 2 ORIGIN, NATURE AND PURPOSE OF ATTACHMENT. § 2 ant should not have notice. If the practice of summoning the defendant at the commencement of the suit ever prevailed under the custom, it was probably found to interfere with the advantage intended to be gained by the attachment, and was therefore discontinued. The only notice the defendant had of the proceeding was what he derived through the attachment it- self.' In this is the greatest distinction between the old Lon- don custom and the American attachment law. Nevertheless, and notwithstanding the local and limited character of this ancient London custom, it is conceded to be the immediate source of the various attachment laws of the United States.* The enlargement upon this narrow source, by each of the law-making powers of the many state sovereignties into which our broad land is divided, has naturally led to the establish- ment of laws dissimilar in many minor particulars. And yet, because of a general similarity of circumstances arising from like business transactions in each, and because of unrestrained transit and unprecedented interstate commerce resulting in unity of interest, we have in the United States one general tendency in the attachment acts of the several states, and one general trend to all judicial administration. The fact that the judiciary of each state looks to the judicial administration of similar laws in other states renders some general consideration of the many attachment laws possible. Therefore the judicial administration of the attachment laws — the union of the specific laws into a generic law as adminis- tered by the courts — will be considered in the following articles, omitting therefrom (in so far as the same may be done without causing obscurity) the special statutory enactments; because such statutes are necessarily local and of little utility out of the sovereignty where alone they obtain. § 2. Nature of tho remedy— (a) It followed imprisonment for debt, to compel appearance. — At the time the London cus- 1. Locke on Foreign Attachment, 12; or the Rights, Liabilities, Privileges, Ashley on Attachment, 9. Laws and Customs of the City of 2. Furtlier as to the London cusloin London;" also Drake on Attach- see Mr. Rohun's "Privilegia Londini ; nient, 13. § 3 NATURE OF THE REMEDY. 3 torn obtained, attachment under it was a co-ordinate remedy with imprisonment for debt. The original object of such at- tachment proceeding was to attach the defendant's property instead of his body, to compel his appearance by sufficient sureties to answer the plaintiff's demand.^ In this country, before the abolishment of imprisonment for debt, an attach- ment could only be levied upon the goods of the defendant to compel him to give bail when he could not be arrested by ordinary process.* After the abolishment of imprisonment for debt, attachment was at first said to be only a process to com- pel the appearance of a defendant whose person could not be reached by the process of court. ^ It was for the purpose of seizing his property to compel his appearance when from non- residence or flight he was beyond the process of the judicial tribunal, and on failure of appearance, by replevin or other- wise, to apply his property to the satisfaction of his debts. It was considered to be an extraordinary and not an ordinary writ, and it was not even then intended to be used when the debtor was within the reach of some ordinary process.* When compared with imprisonment for debt, which preceded it, attachment is not a proceeding in derogation of the princi- ples of the common law, but rather in mitigation of its severity.' In later years attachment has been considered not a proceed- ing to bring the defendant into court, but a means by which the plaintiff may have execution against the tiling attached. It is not to compel the payment of debts, but to make the prop- erty of absentees, and others, liable for their debts.® § 3. (b) It is an ancillary or provisional remedy. — An at- 1. Ashley on Attachment, 11. Duffy v. Owings, 1 Pa. Law Jour. 2. Terrill v. Rogers, 3 Hayw. (Tenn.) Rep. 33. 203. 4. Risewick v. Davis, 19 Md. 82 ; 3. Barney v. Patterson, 6 Har. & J. Cheatham v. Trotter, Peck (Tenn.) (Md.) 182; Perkins v. Norvell, 6 198. Humph. (Tenn.) 151; Boyd v. Buck- 5. Barney v. Patterson, 6 Har. & J. ingham, 10 Humph. (Tenn.) 434; (Md.) 182. Fitch V. Ross, 4 S. & R. (Pa.) 557; 6. Robinson v. National Bank, 81 Albany City Ins. Co. v. Whitney, 70 N. Y. 385; Myers v. Farrell, 47 Miss. Pa. St. 248. Compare Hailman t). 281. Wilson, 1 Pa. Law Jour. Rep. 189; 4 ORIGIN, NATURE AND PURPOSE OF ATTACHMENT. § 3 tachment is not considered to be an independent proceeding, but one merely in aid of an action commenced concurrently with, or before, the proceedings in attachment. The object of it is to secure a lien upon the defendant's property to secure the payment of any judgment wliich the plaintiff may recover in the main suit against him. It is merely auxiliary to the main action to secure property of the defendant to be applied in satisfaction of the judgment of the plaintiff, providing he shall be able to establish his claim.' The process of attach- ment is usually preceded by, or issued concurrently with, one of the original writs incident to personal actions, such as sum- mons or capias.^ And when such leading writ is required, the issuance of an attachment before the summons has been issued will render the attachment void.^ In a few states, however, the issuance of such a leading writ before a writ of attach- ment may be dispensed with; but even in such states an at- tachment is considered to be the blending of two proceedings; one strictly in rem and the other in personam. And the writ is employed as a summons as well as an attachment. It is then twofold and has the same force and effect as two separate writs in other cases. If it is only personally served upon the defendant it will justify a personal judgment against him and a general execution may be levied upon his property as in other cases in personam. If it is served solely as an attach- 1. Excelsior Fork Co. t?. Lukens, 38 2. Leonard v. Stout, 36 N. J. L. 370 ; Ind. 438 ; Fechheimer v. Hays, 11 Ind. Roberts v. Dunn, 71 111. 46 ; Walker 478; Bundreiu V. Denn, 25 Kan. 430; v. Cottrell, 6 Baxter (Tenn.) 257; Furman v. Walter, 13 How. (N. Y.) Grubbs v. Colter, 7 Baxter (Tenn.) Pr. 348; McKinney v. Collins, 88 N. .432. Y. 216 ; Toms v. Warson, 06 N. C. 417 ; 3. Hall v. Crogan, 78 Ky. 11. Marsh v. Williams, 63 N. C. 371; Since the date of the summons is Mixer v. Excelsior, etc., Co., 65 N. C. not a necessary part of it, an attach- 552; Swartz v. Lawrence, 12 Phila. ment is not rendered irregular and (Pa.) 181 ; Maxwell v. Ixia, 6 Heisk. void because its date is prior to the (Tenn.) 247; Bivins v. Matthews, 7 date of the summons. The fact that Baxter (Tenn.) 256; FVankenheimer the summons existed at the time the V. Slocuin, 24 Ala. 373; Moore v. attachment was made maybe shown Sheppard, 1 Mete. (Ky.) 97; THincan by evidence a^JMHde. Smith i?. Walker, «.Wickliffe, 4 Metc.(Ky.)118; Bray v. 6 Rich. (S. C.) 169. McClury, 55 Mo. 128; Eagan v. Luma- den, 2 Dianey (Ohio) 168. § 4 A TWOFOLD NATURE. 5 ment writ the proceeding will then be strictly in rem, like cases in which two writs were issued and no service of sum- mons had. And when both personal service and seizure is made, the remedy will not be restricted to a special execution against the attached property, but a personal judgment may also be^ entered and a general execution issued against other property of the defendant which has not been seized on at- tachment.^ Furthermore, when it is required that a suit in personam be pending in order that the provisional remedy of attachment may be made available, it is not always necessary that the personal writ be served; for where the controlling statute makes the issuance of a summons the commencement of a suit, the writ of attachment may be issued immediately after the issuance and before the service of the summons. The principal action in personam having been begun, the pro- visional character of the attachment is preserved, the require- ments of the statute are thereby satisfied and a seizure of prop- erty thereafter will bring it within the jurisdiction of the court, although no personal service be ever made of the writ.^ § 4. (c) It has a twofold nature when there has been personal service. — When there has been both a personal serv- ice and a seizure of property on a writ of attachment, the suit against the defendant assumes a double character. It becomes a proceeding in rem against the property levied upon, and also becomes an action in personam. This action in personam is in- dependent of the attachment, and though the plaintiff may fail as against the property, he may, nevertheless, recover a per- sonal judgment.^ And because of the independent character of the personal action, a plea in abatement to the writ, or any other denial of the existence of cause for attachment, will not prevent the rendition of judgment by default and the issuance 1. Bower v. Town, 12 Mich 229; Allen v. Meyer, 73 N.Y. 1; American Conn V. Caldwell, 6 111.(1 Gilman) Exchange Bank i'. Voisin, 44 Hun (N. 531; Erwin v. Heath, 50 Miss. 795; Y.) 85. Magee v. Beirne, 39 Pa. St. 50; Elliot 3. Bishop v. Fennerty,46 Miss.570; V. Stevens, 10 Iowa 418. Hills v. Moore, 40 Mich. 210. 2. Wallace v. Castle, 68 N. Y. 370; ORIGIN, NATURE AND PURPOSE OF ATTACHMENT. §4 of a general execution against the jjroperty of the defendant.' Another incident of the twofold nature of the remedy by at- tachment is, that where there has been an attachment of the defendant's property, and the defendant has procured the re- 1. Schulenberg v. Farwell, 84 111. 400. Note 1 — To what extent an at- tachment IS CONSIDERED TO BE A SUIT. — Although an attachment is deemed to be a proceeding in aid of a suit pending, it is in some senses itself a suit. An attachment sued out against a non-resident debtor is a **suit" within the meaning of the judiciary- act of congress which gives exclusive jurisdiction to the district courts of the United States in all suits against consuls. Matter of Aycinena, 1 Sand. (N. Y.) 690. And the suing out and levying of an attachment is such a suit that it may be pleaded in abatement or in bar of another suit brought to recover the same debt. Dean v. Massey, 7 Ala. 601; Monroe v. Castleman, 3 A. K. Marshall (Ky.) 399. It is a remedy, and, like every remedy, may be de- feated by any act that bars or takes away the remedy or right to judgment under it. Ex parte Foster, 2 Story 131. Note 2 — To what extent an at- tachment IS CONSIDERED TO BE AN EX- ECUTION. — While an attachment has not the same force as an execution — Reeves v. Johnson, 12 N. J. L. 29 — its effect is in many respects similar to that of an execution. In fact, in Maryland, under the act of 1715, it was considered as an execution and governed by the same principles, and in consequence thereof an alias at- tachment could not be sued out before the first was returned, for the neglect of the sheriff to return the first afford- ed no presumption that it had not been served. Baldwin v. Wright, 3 Gill (Md.) 241. It was held in the same state in 1870 that it was not an execution within the meaning of the statute which pi'ovided that the goods and chattels of a lessee of land should not be seized on execution and re- moved therefrom unless the plaintiff in execution should render to the landlord the arrears of rent due to him from such lessee. Thomson v. Baltimore, etc.. Steam Co., 33 Md. 312. It differs also from an execution, in that it only becomes a binding lien from the time of the actual levy, while an execution binds from the time it comes into the hands of the officer. Stockley v.Wadman, 1 Houst. (Del.) 350; Shacklett & Glyde's Ap- peal, 14 Pa. St. 326. It further differs from an execution, in that it only operates upon the right of the debtor existing at the time of the levy. No interest subsequently acquired by the debtor can in any manner be affected by the return thereof when none was in him at the time the attachment was made. Crocker v. Pierce, 31 Me. 177. But where the debtor has some interest in the property at the time of the levy, and the lien is thereafter perfected by the judgment, and a sale is made on execution issued thereon, there hav- ing been a personal appearance, the sale seems to pass not only the inter- est which the defendant had at the date of the levy of the attachment, but also whatever interest he may have subsequently acquired. Willis V. Pounds (Tex. Civ. App.), 25 S. W. Rep. 715. § 5 IN THE NATURE OF A PROCEEDING IN REM. 7 lease of such property by executing an undertaking with sure- ties, such suit as a proceeding in rem is completely changed and it becomes a proceeding in personam as wholly as if it had been originally commenced by an ordinary summons, and no attachment had ever been sued out.^ And the bond stands as collateral security for the general judgment and execution that may be obtained.^ § 5. (d) It is in the nature of a proceeding in rem when there has been no personal service.— The nature and effect of the remedy by attachment, when no personal service has been made upon the defendant, is a subject that has received much consideration and many interpretations. It is a fundamental principle of justice, recognized and acted upon by all courts, that a party can not be deprived of, or his rights affected, with- out having an opportunity to assert and defend them ; and that to bind a person by judicial sentence, he must be made a party to the proceeding and must be served with actual or con- structive notice of the proceeding, or must voluntarily enter his appearance." The seizure of the defendant's property in at- tachment and the publication generally required by the statute is deemed to be such constructive notice as to give the court jurisdiction of the thing seized. Hence, when there is a seizure of property and no personal service, the attachment suit, being founded upon constructive service, is essentially in the nature of a proceeding in rem, the possession of the res be- ing necessary to the jurisdiction of the court.* And the judg- 1. Hill V. Harding, 93 111. 77; Peo- S.) 511; Judahv. Stephenson, 10 Iowa pie V. Cameron, 7 111. 468; Buchman 493. v.Dodds, eill.App. 25; Stix'y.Dodds, 4. Bray v. McClury, 55 Mo. 128; 6 111. App. 27; Brenner Truck Co. v. Erwin v. Heath, 50 Miss. 795; Cooper Moyer, 98 Pa. St. 274; Albany City v. Reynolds, 10 Wall. (U. S. Sup. Ct.) Ins. Co. V. Whitney, 70 Pa. St. 248; 308; Kilburn ^j. Woodworth, 5 Johns. Gillespie v. Clark, 1 Tenn. 2; Shirley (N. Y.) 37; Field v. Dortch, 34 Ark. V. Byrnes, 34 Tex. 625; Parker v. 399; Pennoyer t). Neff, 95 U. S. 714; Brady, 56 Ga. 372; Dierolf v. Winter- Myers v. Farrell, 47 ]\Iiss. 281 ; Ingle field, 24 Wis. 143. v. McCurry, 1 Heisk. (Tenn.) 26; 2. Jones v. Gresham, 6 Blackf. IMaud r. Rhodes, 4 Dana (Ky.)145; (Ind.) 291. Eagan v. Lumsden, 2 Disney (Ohio) 3. Borders v. Murphy, 78 111. 81; 168; McCord & Nave Mercantile Co. Westerveld v. Lewis, 2 McLean (U. v. Bettle, 58 Mo. App. 384. 8 ORIGIN, NATURE AND PURPOSE OF ATTACHMENT. § b ment and execution can effect no more than the subjection of the property seized.* When there has been a seizure and pub- lication, both of which are necessary to confer jurisdiction, the defendant is considered to be in court to the extent that it may bind him by a judgment to the extent of the property seized. In other words, he is before the court for all purposes except the rendition of a general personal judgment. The state has power to assert jurisdiction over personal property situate within its territorial limits, even though the person of the owner be not within the jurisdiction of the court which renders the judgment.' The effect of this is that where the property seized, and the judgment obtained against the same, is insuf- ficient to satisfy the plaintiff's demand against the defendant, a further suit must be brought upon the original cause of ac- tion ; and the defendant will then have the right to set up and rely upon any defense he could have interposed had no suit or attachment ever been brought, or judgment therein recovered.' But while the action is considered in the nature of a proceed- ing in rem when there is no personal service, and remains so unless the defendant voluntarily appears, his appearance in the suit will then give it the nature also of an action in personam and will give the court jurisdiction to render a personal judgment and to issue a general execution against all of the defendant's property.* § 6. (e) It has no extra-territorial effect without personal service. — It is not only a universally recognized principle of 1. Clymore v. Williams, 77111. 618; personal judgment by default can be Hobson V. Emporium R. Est. and rendered against a non-resident in at- Manf. Co., 42 111. 306; Parsons v. tachment on statutory' notice. This, Paine, 26 Ark. 124 ; Clark v. Holliday, however, is contrary to the prevailing 9 Mo. 711 ; Janny v. Spedden, 38 Mo. doctrine and is only here cited as an 395 ; Mayfield v. Bennett, 48 Iowa exception to the general rule. Meyer 194; Banta v. Wood, 32 Iowa 469; v. Keith, 13 So. Kep. 500, 99 Ala. 519. Doolittle V. Shelton, 1 Greene (Iowa) Also First Nat. Bank v. Ragan, (Ga.) 272; Stanley v. Stanley, 35 S. C. 584, 18 S. E. Rep. 295 ; post, § 450. 594, 14 S. E. Rep. 675. 3. Bliss v. Heasty, 61 111. 338. 2, King V. Vance, 46 Ind. 246; Dow- 4. Green v. Hill, 4 Tex. 465; Les- ner v. Shaw, 2 Foster (22 N. H.) 277; ter v. Watkins, 41 Miss. 647; Philips Phelps r. Baker, 60 Barb. (N. Y.) 107. v. Hines, 33 Miss. 163; Miller v. Ew- A late case in Alabamaholds that the ing, 8 Sm. & M. (Miss.) 421 ; Bates v. judgment in such a case need not be Crow, 57 Miss. 676, 678; Lincoln v. one of condemnation only, but that a Tower, 2 McLean (U. S. C.) 473. § 7 IT IS STRICTLY A PROCEEDING AT LAW. 9" law that a state may assert jurisdiction over the property situ- ate within its territorial limits, and that therefore it may by attachment appropriate such property to the satisfaction of the demands by creditors made in its courts;* but it is an equally well settled rule of law that unless the defendant be personally in court, either by personal appearance or because personal service of a writ upon him, no judgment can be rendered against him which will have any binding force beyond the jurisdiction of the court other than against the property within its limits. It follows then that a judgment in attachment en- tered in a case in which the defendant is not served with process and has not made voluntary defense, has no validity in another state; that while a judgment founded upon personal service of process becomes an absolute debt of record and as such may be recoverable in any state of the Union by proving the judgment, yet a suit can not be brought in another state on a judgment rendered without personal service or appear- ance. It does not furnish even prima facie evidence of an indebtedness in another state. And a want of jurisdiction may also be set up against an action upon such judgment when sought to be enforced in another state. ^ § 7. (f) It is strictly a proceeding at law.— The remedy by attachment is, except in a very few states, wholly other than an equitable proceeding. It is a special remedy at law, belonging exclusively to court of law, and pursued in conformity with the terms of law. Attachment for the collection of debts is essen- tially legal, and not equitable, in its nature and procedure, and 1. See last preceding section. Johns. (N. Y.) 37; Force v. Gower, 2. D'Arcy v. Ketchum, 11 How. 23 How. Pr. (N. Y.) 294; Phelps v. (U. S.) 165; St. Clair v. Cox, 106 Holker, 1 Dall (Pa.) 261; Steel v. V. S. 350; Thompson v. Emmert, Smith, 7 Watts & S. (Pa.) 447; Moore 4 McLean (U. S.) 96; Harris v. Hard- v. Gennett, 2 Tenn. Ch'y 375; Earth- eman, 14 How. (U. S.) 334, 340; Dick- man v. Jones, 2 Yerger (Tenn.) 484; inson v. Hayes, 31 Conn. 417 ; Fitzim- Hodges v. Bauchman, 8 Yerger mons u. Marks, 66 Barb. (N. Y.)333; (Tenn.) 186; Melhop v. Doane, 31 Pawhng V. Bird, 13 Johns. (N. Y.) Iowa 397; Manchester v. McKee, 9 192; Robinson v. Ward, 8 Johns. (N. 111. (4 Gilm.) 511 ; Conwell v. Thomp- Y.) 86; Kilburn v. Woodworth, 5 son, 50 111. 329. 10 ORIGIN, NATURE AND PURPOSE OF ATTACHMENT. § 8 necessitates a trial at law upon legal issues.* And if, for any cause, the remedy it affords be not full and complete, a court of equity can not cure the deficiency.^ Nor can a court of equity extend it to cases for which the statute has not provided.' § 8. (g) It is wholly statutory, in derogation of the com- mon law, and its rules will be strictly construed. — The power to take property by attachment, before any debt or claim has been established, is an extraordinary power given by statute against common right.* And a court which exercises such extraordi- nary jurisdiction is only justified in acting under the special powers limited by the statute, and according to the forms of procedure it prescribes. It has no such jurisdiction under its general powers. It is only warranted in making an attach- ment by virtue of the special and summary statute. Such a statute is extraordinary and exclusive, and to obtain jurisdic- tion thereunder its direct course must be followed in form and mode prescribed.® And the power of the court to act must appear on the face of the proceedings or be proved at the trial.* When compared with processes against property as known to the common law, the statutory writ of attachment has no parallel whatever.' It is in derogation of the common law, and the rules laid down by the statute will be strictly construed as to the subjects as well as the means of attachments.' Pre- 1. Bachman t). Lewis, 27 Mo. App. Piei-ce, 13 R. I. 532; McPherson v. 81 ; Lackland v. Garesche, 56 Mo. 267; Snowden, 19 Md. 197 ; Jaffray v. Jen- Gage V. Gates, 62 Mo. 412, Phillips v. nings, 10.1 Mich. 515, 60 N. W. Rep. 52. Ash, 63 Ala. 414; Henderson v. Ala- 6. Risewick v. Davis, 19 Md. 82. bama G.L. I. Co., 72 Ala. 32; DeCelis 7. Compared with imprisonment V. Porter, 59 Cal. 464. for debt see supra, § 2. 8. RoM'ley v. Berrian, 12 111. 198- 2. McPherson v. Snowden, 19 Md. 202 ; Barksdale v. Hendree, 2 Patt. & 197; Neate v. Duke of Marlborough, H. (Va.) 43; Moore v. Hamilton, 7 3 M. &C. (Eng. Ch'y) 407. Hi. (2 Gilm.) 429; Groce v. Ritten- 3. Janney v. Buell, 55 Ala. 408. berry, 14 Ga. 232; James v. Jenkins, 4. Sanford v. Pond, 37 Conn. 588. Hempst. 189; May v. Baker, 15 111. 5. Buckley v. Lowry, 2 Mich. 418; 89; Pool r. Webster, 3" Mete. (Ky.) Greenvault v. Farmers' and M. Bk., 278; Wilkie v. Jones, 1 Morr. (Iowa) 2 Doug. (Mich.) 498, 508; Adler v. 97; Musgrave v. Brady, 1 Morr. (Iowa) Cole, 12 Wis. 188; Tiffany v. Glover, 456; Leak v. Moorman, Phill. (N. C.) 3 Greene (Iowa) 387; Godding v. L. 168 ; Humphreys. Wood, Wright § 8 IT IS WHOLLY STATUTORY. 11 sumptions will not be sustained and the remedy will not be extended by implication.* The proceeding is considered as a violent and extraordinary special remedy, and the plaintiff has uniformly been held to a strict compliance with all the condi- tions precedent to a judgment by default.^ Where such conditions are not complied with the attachment will be void for want of jurisdiction, and the judgment creditor taking property thereunder will be held liable to an action of dam- ages for a wrongful taking and conversion of such property." Contra. The rule above stated, which is a rule of general application not only for the interpretation of attachment stat- utes, but also of all statutes of every name and nature, is, how- ever, not quite universal. For, although in most states an at- tachment law, being a creature of the statute, is looked upon with jealousy by the courts, and its provisions therefore guard- ed and restricted to the precise letter of the statute, a few states seem inclined to broaden the remedy and construe the attach- ment statutes liberally, with a view to carry into effect the ob- vious intent of the legislature for the advancement of justice, the suppression of fraud and the benefit of creditors. They hold that a substantial compliance with the provisions of the statute is sufficient, and where initiatory proceedings have not (Ohio) 566 ; Wooster v. McGee, 1 Tex. Ann. 687 ; Graham v. Burckhalter, 2 17; Caldwell v. Haley, 3 Tex. 317; La. Ann. 415; Boardman u. Glenn, 7 Rankin v. Dulaney, 43 Miss. 197 ; La. Ann. 581. Wolley Vo Bowie, 41 Miss. 553; Fos- 1. Focke v. Hardeman, 67 Tex.173 ter V. Simmons, 40 Miss. 585 ; Robert- Bussey v. Rothschilds, 26 La.Ann. 258 son V. Johnson, 40 Miss. 500; Gates Denegre v. Milne, 10 La. Ann. 324 V. Flint, 39 Miss. 365; Roy ^J. Heard, Barriere v. Feste, 9 La. Ann. 535 38 Miss. 544; Jefferies v. Harvie, 38 Beck w. Brady, 6 La. Ann. 444; Shrop- Miss. 97; Campbell v. Hall, McCa- shire ?;. Russell, 2 La. Ann. 961. hon (Kan.) 53; Parker v. Scott, 64 N. 2. Van Norman v. Judge Jackson C. 118; Caldwell v. Sibley, 3 Minn. Circuit, 45 Mich. 204; Woolkins v. 406; Frellson V. Stewart, 14 La. Ann. Haid, 49 Mich. 299; Millar v. Bab- 832 ; Price v. Merritt, 13 La. Ann. 526 ; cock, 29 Mich. 526 ; Wells v. Walsh, New Orleans v. Garland, 11 La. Ann. 25 Mich. 344; King v. Harrington, 14 438; Gordon v. Baillio, 13 La. Ann. Mich. 532; Thompson v. Thomas, 11 473; Stockton v. Downey, 6 La. Ann. Mich. 274; Wilkie v. Jones, 1 Morr. 581; Shirley v. Owners, 5 La. Ann. (Iowa.) 97. 260; Wilson v. Churchman, 4 La.Ann. 3. Kelly v. Archer, 48 Barb. (N.Y.) 452; Planters' Bank v. Byrne, 3 La. 68. 12 ORIGIN, NATURE AND PURPOSE OF ATTACHMENT. § § 9, 10 been wholly regular they are inclined to indulge all presump- tions necessary to give jurisdiction and authority to the court.* § 9. (h) It is an evolving; remedy. — There seems to be a general inclination of the many state legislatures to broaden the remedy by attachment for the collection of debts and en- forcement of demands. This is evidenced by the acts of many of them in late years for permitting an attachment process to issue for the collection of debts not due ; for the enforcement of demands arising from other sources than strict contracts ; and for the garnishment of things in action and evidences of debt. § 10. Purpose of attachment — to create a provisional lien. — Attachment is a factor of that system of law which charges the property of a debtor with the payment of his debts. Its pur- pose is to give to the creditor, from the very commencement of his suit, a lien on the estate of his debtor. It is an anterior process, the purpose of which is to make the jurisdiction of the court in ulterior proceedings more effectual, and to afford the plaintiff security for the satisfaction of the judgment which he may obtain. It is an effort to create a lien upon the debtor's property. The attachment levy from its date operates as such a lien. That is to say, it charges the property levied upon with the payment of the judgment to be rendered, in priority of any subsequent alienations the defendant may make, or of any sub- sequent encumbrances he may create. The so-called lien created by attachment is, however, an imperfect one. It is not a lien in the sense used in the common law, for it is condi- tional and qualified. The plaintiff by attachment can only ac- quire a lien upon the subject of it provisionally; that is to satisfy the particular debt to the amount of the judgment which may be recovered, and only when the debt becomes merged into a judgment. This lien can operate onl}'- on the particular property which is the subject of the levy. The lien created by 1. Bank of Augusta v. Conrey, 28 yan v. Morgan, 7 Humph. (Tenn.) Miss. 667; Brj'an w. Lashley, 21 kiss. 210; Irvin v. Howard, 37 Ga. 18; 284; Flake r.Day, 22 Ala. 132; Run- Wilson v. Spring, 38 Ark. 181. § 11 THE PURPOSE AND RESULT. 13 the attachment is therefore imperfect, incipient, inchoate and conditional. It is a contingent charge only until it is perfected by judgment and levy. It is such a lien as to be notice to third parties of its existence while the suit is pending, but if the plaintiff fails in his suit to establish a legal demand against the defendant, the lien is dissolved; because it is dependent upon the condition that the plaintiff in the suit obtain judg- ment and execution, into which the attachment lien must be merged to be of any avail.* The lien (for the sole creation of which an. attachment pro- ceeding is begun), although qualified, conditional and imper- fect, is not without great force and tenacity. It is a rule, uni- versal in its application, that when a court once acquires jurisdiction of a subject-matter, any subsequent error or irreg- ularity will not divest it. In attachment causes the jurisdiction over any given subject-matter is obtained by the levy thereon of a writ properly issued ; and no matter what, nor how great errors or irregularities may subsequently occur, the 7'es remains in the grasp of the court, and its judgment in regard thereto will be valid and binding until reversed on error or by appeal, or set aside in a direct and appropriate proceeding for that pur- pose. The judgment can not be vacated collaterally, nor can it be attacked at the suit of a stranger.^ § 11. The purpose and result of the many state statutes are uniform. — From the above brief statement of the whole scope of the attachment law, it will be readily seen that the remedy by attachment is one of great practical importance, extending over a wider field and contemplating a greater diversity of legal 1. Saunders v. Columbus Life Ins. Stockley v. Wadman, 1 Houst. (Del.) Co., 43 Miss. 583; Phillips v. Ash, 63 350; Bethune v. Gibson, 2 Brev. (S. Ala. 414; Hale v. Cummings, 3 Ala. C.) 501; Crocker u. Radcliffe, 3 Brev. 398; Randolph v. Carlton, 8 Ala. 606; (S. C.) 23; Shacklett & Glyde's Ap- Downer v. Bracket, 21 Vt. 599; Frell- peal, 14 Pa. St. 326; People v. Cam- son V. Green, 19 Ark. 376; Ex parte eron, 7 111. 468 ; Houston u. McCluney, Foster, 2 Story (U. S. C.) 131 ; Bellows 8 W. Va. 135 ; Peck v. Webber, 7 How. & Peck's Case, 3 Story (U. S. C.) 428; (Miss.) 658; Van. Loan v. Kline, 10 Lamb v. Belden, 16 Ark. 539; Tappau Johns. (N. Y.) 129. V. Harrison, 2 Humph. (Tenn.) 172; 2. Hardin v. Lee, 51 Mo. 241. 14 ORIGIN, NATURE AND PURPOSE OF ATTACHMENT. § 11 doctrines than would be imagined by one who has only casually examined the subject. Because of the very nature of our in- stitutions — there being nearly half a hundred independent sovereignties — the general system of statute law is only uniform to a limited extent. But there is unquestionably a uniform purpose and result. Therefore the rules and principles of the diverse statutory proceedings, designed to have an identical effect, have great general value when judicially established, even though the statutes themselves differ widely in detail. In fact it has been said by one who has perhaps done more to unify the attachment laws of the United Sates than any other one man,* that there is probably no other subject of equal ex- tent, in the administration of the law, depending so entirely upon statutory provisions, and so exclusively regulated by them, that would exhibit less diversity of judicial decision than is connected with the subject of attachment. It is the judicial decisions upon the general rules and pre- cepts of attachment which the following pages of this work purport to consider and classify, for they alone have any extra- territorial effect. Therefore the quotation of statutes will be generally avoided, and the substance of them given only where an omission so to do would lead to uncertainty in the applica- tion of the principle enunciated by the court. Having given above a very brief synopsis of the great and multiform system of American attachment law, we will proceed to a detailed practical consideration of the rules for obtaining aid by means of an attachment. 1. Charles D. Drake, LL. D. CHAPTER II. WHAT DEMAND WILL SUPPORT THE ACTION. t§ 12. A demand for money, (a) Gen- § 19. (h) On demand for damages un- eral view of the subject. liquidated. 13. (b) Limitation of this treatise. 20. (i) For debts not due. 14. (c) What the term "debt" com- 21. (j) On equitable demands. prebends. 22. (k) On demands that have been 15. (d) What is a money demand. sued upon. 16. (e) What is a demand on con- 23. (1) On judgments and decrees. tract within the attachment 24. (m) Not on a demand where law. other security exists. 17. (f) On contract made outside of 25. (n) On landlords' or agricultu- the state. ral liens, and laborers' liens. 18. (g) On contract to marry, 26. (o) Not on a penalty. 27. (p) On demand ex delicto. § 12. A demand for money— (a) General view of the sub- ject. — Attachment under the London custom, upon which the American attachment law was built/ could only issue in an ac- tion of debt, and the debt must have been of such a nature as to support an action at law." In America the remedy has been given a wider application. A few states have permitted it for the recovery of damages arising from torts, and a few have al- lowed it in actions brought in courts of equity as well as in courts of law, as will hereinafter be more particularly shown. The statutes of all the states confine it to actions for the recovery of money. ^ They variously state it to be competent "for the re- covery of money;"* in a "civil action" "for the recovery of money;" ^ "on contract express or implied for the direct pay- ment of money;"* "upon money demands whether ex con- 1. See ante, § 1. 4. Minnesota Statutes, title 15, 2. Privilegia Londini, 245; Ashley §4982. on Attachment, 21, 22. 5. Arkansas Statutes, Chap. TX, 3. It can not be used as a means for § 309. recovering specific property. Gates 6. California Code, § 537. V. Bennett, 33 Ark. 475. (15) 16 WHAT DEMAND WILL SUPPORT THE ACTION. § 13 tractu or ex delicto,"^ and for the recovery of money when the defendant has either "fraudulently or criminally contracted the debt or incurred the obligation,"^ and for " any injury to personal property in consequence of negligence, fraud, or other wrongful act," ^ and many other provisions within these limits. Each statutory provision being strictly construed, and solely ap- plicable within the state where it was enacted, the repetition of it in a general work of this character would, if not irrelevant, be at least cumbersome, and undesirable to all except the local practitioner, who must of necessity familiarize himself with the provisions of the controlling statute in each particular in- stance. It may, however, be stated as a universal rule, that an attachment can only be sued out for the recovery of money on a present existing, certain demand, A demand that has existed in the past merely, or one which is acquired after the issuing of the writ will not support the action.* Attachment is not a writ that can be invoked to remedy prosecutive, con- ditional, or contingent liability.* The demand must always exist, though it need not in all states be due. § 13. (b) Limitation of this treatise. — In a work of such general character as this is designed to be, there seems to be little need of referring to the various state statutes and codes defining the exact character of claim against a debtor 1. Georgia Code, §3278 (3210,3199). Sharp, 50 N. J. 392, 13 Atl. Rep. 243 2. Ohio Code, §5521, subsec. 9; Humphreys ?;. Matthews, 11 111. 471 Sturdevant v. Tuttle, 22 Ohio State Henderson v. Thornton, 37 Miss. 448 111 ; Creasser v. Young, 31 Ohio State, Denegre v. Milne, 10 La. Ann. 324 57. Barriere v. Feste, 9 La, Ann, 535 3. N. C, Code, § 347, subsec, 3 ; New- Blanchard v. Grousset, 1 La. Ann. 96, bern Gaslight Co. v. Lewis Mercer An article of agreement was entered Cons. Co., 113 N. C. 549; 18 S. E. into between A of the first part, and B Rep. 693. and his wife of the second part, but the 4. In Iowa, when such demand ex- covenants of A ran to B alone, he- ists on behalf of the state, there must cause of which it was held that the be a demand of payment, or for secur- wife of B could not properly be joined ity, made before attachment will lie. as plaintiff with her husband in an State V, Morris, 50 Iowa 203. attachment suit against A, founded 5. Black V. Zacharie, 3 How, 485 ; upon an alleged breach of his cove- INIechanics*, etc, Bank v. Dakin, nants. Hugh v. Kugler, 36 Md, 186, 33 How, (N, Y,) Pr, 316; Westcott v. § 14 WHAT THE TERM '*DEBT" COMPREHENDS. 17 which may be enforced by attachment, because it is presumed that the local practitioner will have informed himself in that regard by consulting the special statute governing his case. It is believed he will not consult a text-book to ascertain on what particular class of claims he may bring attachment, but that, knowing the statutory provision regarding the demands which may be enforced by attachment, he will then want to know what the courts have decided to be demands of that class. In other words, that, having the rule, he will want to know its interpretation and application. Therefore, the following sec- tions are not designed to point out which states will permit at- tachments for demands of the classes named, but to indicate the reasoning of courts when attachments are permitted to aid in the collection of such claims. § 14. (c) What the term "debt" comprehends. — Blackstone says a debt is "a sum of money due by certain and express agreement." It has been given a somewhat broader signifi- cance in this country, wherein it has been held "a debt is a sum of money due by contract, express or implied."* And with regard to attachment it is such debt as can be enforced in an action of debt or indebitatus assumpsit.' In Maryland and Michigan a demand which is founded upon a contract, which of itself ascertains the amount of the indebtedness, or which furnishes a standard enabling the plaintiff to aver it in his affi- 1. Perry v. Washburne, 20 Cal. 318 ; and setting apart to the bricklayer a Hunt V. Norris, 4 Martin (La.) 517. sum to become due on the building 2. Mills V. Roberts, 14 Ga. 230; contract, equal to the whole sum, to Hassie v. God, etc., Cong., 35 Cal. 378. fall due on the bricklaying contract. Under such holding the following On delivery by the architect of a cer- case arose: A congregation contracted tiflcate to the bricklayer of install- with a builder to erect for it a syna- ments due to the builder for work, an gogue, and to pay him therefor in in- attaching creditor of the bricklayer stalhnents upon the architect's certifi- garnished the congregation. It was cates as the work progressed. The held that no such legal demand exist- builder then contracted with a brick- ed in favor of the bricklayer against layer to do for him the brick work, the congregation as was liable to and to pay therefor in installments as garnishment. Hassie v. God, etc., the bricklayer progressed, assigning Cong., 35 Cal. 378. Att. 2 18 WHAT DEMAND WILL SUPPORT THE ACTION. § 14 davit or the jury to find it, there is such an indebtedness as will be ground for attachment.* In Kansas, when damages have resulted from a breach of a contract to deliver cattle, there is such a "debt" as will sustain an action in attachment when properly shown.' In Alabama a demand to deliver cot- ton at a future time is not a "debt," there being no default in the delivery of the cotton, the time therefor having not ar- rived.' In a case where the defendant hired a barge from the plaintiff at a certain rate per day, agreeing that if it was not returned in as good condition as when hired, the defendant should pay a certain agreed value of the barge as upon a sale, and the barge when returned being in a worthless state, it was held that the plaintiff's claim was such a "debt" or a "money demand, the amount of which could be easily ascertained," within the meaning of the statute, as would support an attach- ment.* In Virginia a claim arising on a contract of bailment made outside of the state against a non-resident, is a claim for debt on which attachment will lie.® A claim arising out of the official neglect of the clerk of a court is not a "debt" which will support a foreign attachment. And a clerk of a court, if a non-resident, is not amenable to the jurisdiction of the court as an absent defendant. He is not answerable as a "debtor" but as a tort-feasor.* A claim of the holder against the endorser of a promissory note not due is a "debt" within the meaning of the Ohio code authorizing attachments in certain cases before the debt be- comes due.' In Colorado where the code provides for the 1. Wilson V. Wilson, 8 Gill (Md.) 5. Peter v. Butler, 1 Leigh (Va.) 192 ; Roelofson v. Hatch, 3 Mich. 277. 285. And if such indebtedness can be 6. Dunlop v. Keith, 1 Leigh (Va.) affirmed, " as near as maybe," it will 430. be sufficient. 7. Smead v. Chrisfield, 1 Handy 2. Stiff V. Fisher, 2 Tex. Civ. App. (Ohio) 442. 346, 21 S. W. Rep. 291; Stiff v. Fish- And where a firm was dissolved and er, 2 Tex. Civ. App. 295, 21 S. W. the partner, who was to continue the Rep. 291, business, took the assets, assumed all 3. Moore v. Dickerson, 44 Ala. 485. the indebtedness of the firm, gave his 4. Tennessee River Transp. Co. v. notes to the retiring partner to secure Kavanaugh, 93 Ala. 324, 9 So. Rep. ^>''ti against the firm creditor, all pay- 395. ments of debts which the continuing § 14 WHAT THE TERM "DEBT" COMPREHENDS. 19 bringing of an action in attachment on a written instrument for the payment of money, a certified check with payment re- fused is such debt as will constitute a good cause of attach- ment.^ But an appeal bond conditioned that if defendant will duly prosecute his appeal, and pay the judgment in case the same shall be affirmed, then the obligation shall be void, other- wise it shall renmin in full force, is not a written instrument for the direct payment of money within the meaning of the Colorado code, which provides that "in all actions brought upon overdue promissory notes, bills of exchange, other writ- ten instruments for the payment of money, and upon book ac- counts," the creditors may have a writ of attachment issued." Nor is a suit on an administrator's bond a suit on a ''written instrument for the direct payment of money," under the Colo- rado code.' The provisions permitting an attachment to issue in case of the existence of a debt, necessarily contemplated a debt that is not illegal, lience where coverture still constitutes a bar to the making of a legal contract, the property of a married woman can not be subject thereto, and, if the property of a married woman has been subject to a sale under attachment, the sale may be attacked collaterally.* There is no uniformity in the provisions of the statutes, nor in the decisions of the courts when such statutes are silent thereon, as to whether the "debt" must be strictly a legal debt enforcible in an action at law or whether it also includes an equitable indebtedness recoverable only in a suit in chancery. It has been said that although an attachment might have been partner should make to be credited on Morris v. Turner, 3 Pa. Law Jour. Rep. the notes and the notes be uncon- 423. ditional on their face, it was held that 1. Breene v. Merchants' etc.. Bank the notes were evidence of sVich an in- (Colo.), 17 Pac. Rep. 280. debtedness as would support a writ of 2. Hurd v. McClellan, 14 Colo. 213 ; attachment. Brown v. Wyatt, 72 Tex. 23 Pac. Rep. 792. 60. 3. People; v. Boylan, 25 Fed. Rep. A claim for general average is a 594. debt " contracted and owing," which 4. Williams v. St. Louis, Iron will support a foreign attachment Mountain, etc., Ry. Co., 8 Mo. App. when sued out to recover the same. 135. 20 WHAT DEMAND WILL SUPPORT THE ACTION. § 15 had at law, yet if equity has acquired jurisdiction of the sub- ject-matter an equitable attachment may issue.* Then again it has been further held, under special statutory provisions, that the remedy in equity is co-extensive with that at law and that an equitable attachment is proper for a debt on property held by an equitable title. ^ But it has also been held that attach- ment will not lie in aid of a bill in equity to charge the sepa- rate estate of a married woman.' It has been refused in an ac- tion for injunction against the infringement of a trade-mark and for damages ; * and where the demand is merely of an equitable nature.^ Under many statutes the establishment of an existing *'debt" is not a sufficient showing of a claim entitling the plaintiff to an attachment. The further fact must be established that the indebtedness has matured — that the debt is due. Where such is the requirement, the issuance of the writ before the debt is due will render the plaintiff liable for damages, notwithstand- ing the fact that he may have filed an amended affidavit or petition on the maturing of the indebtedness.® Under a pro- vision that the debt must be "due absolutely, and without de- pending upon any contingency,''* the contingency contemplated is not a mere uncertainty how the balance may stand between the creditor and the alleged debtor; but is such a contingency as may preclude the creditor from any right to collect the al- leged debtor's account.' §15. (d) What is a "money demand." — Where the pro- vision of the statute is that an attachment may issue **in an action for the recovery of money," it can not be sustained in 1. Epping V. Aiken, 71 Ga. 600. 6. Young v. Broadbent, 23 la. 539; 2. Ware v. Seasongood, 92 Ala. 152; Graham v. Merrill, 5 Coldw. (Tenn.) 9 So. Rep. 138. 622. 3. Brumback v. Weinstein, 37 Mo. A creditor baring taken a negotia- App. 520. ble note in a settlement of accounts 4. Guilhon v. Lindo, 9 Bosw. (N. with the debtor, no right of action ac- Y.) 601. crues till after the dishonor of the 5. Graham v. Merrill, 5 Coldw. note. McCluny v. Jackson, 6 Gratt. (Tenn.)622. See further as to "Equit- (Va.) 96. able Demands," post, § 21. 7. Dwinel v. Stone, 30 Me. 384. § 16 WHAT IS DEMAND "ON CONTRACT." 21 an action for damages, as by an injunction against the in- fringement of a trade-mark, for it was not intended that it should be applied as a provisional remedy in an action of an equitable nature, where the amount which the plaintiff may recover must be ascertained by an accounting.' ' And where it is provided that an attachment may issue on a money demand, it can not be employed to enforce the fulfillment of a promise to pay in solvent notes, because such claim is not a money de- mand until after the failure to pay the notes.' Neither is a suit to foreclose a mortgage an action for the recovery of "money alone." ' But again, on the other hand, it has been held that an attachment may properly issue in an action to foreclose a mechanic's lien for the amount of money claimed on an account under a statute allowing an attachment in every "civil action for the recovery of money," because the debt is the real subject of the action and the lien merely subservient thereto.* Actions arising upon default made in the payment of bail bonds, official bonds, appeal bonds and other undertakings have been, with few exceptions, pronounced to be not actions upon a "money demand," but actions arising on penalties; and hence, actions sounding in tort and not on contract.^ §16. (e) What is a demand " on contract," within the at- tachment law.— Courts construe the statutes providing that an attachment may issue in actions " on contracts " to include only contracts actually made between the parties, or at most only those implied from their dealings. They do^ not extend such provision to include that class of obligations depending on contract by matter of record.' It is observable, however, 1 Guilhon v. Lindo, 9 Bosw. (N. ascertained." Guy v. Lee, 81 Ala. Y.) 601. 163, 2 So. Rep. 273. 2. Monroe v. Bishop, 29 Ga. 159. 5. See post, § 26. 3 Van Wyck v. Bauer, 9 Abb. Pr. 6. Gutta-Percha, etc., Co. v. City of (N Y ) N. S. 142. Houston, 46 Hun (N. Y.) 237; Gris- 4. Gillespie v. Lovell, 7 Kans. 419. wold v. Sharpe, 2 Cal. 17; Barker v. An action for breach of warranty of Esty, 19 Vt. 131 ; Minga v. Zolhcof- title to personal property is a "money fer, 1 Ired. (N. C.) 278. demand, the amount of Avhich can be 22 WHAT DEMAND WILL SUPPORT THE ACTION. § 16 that although many declarations are made to the contrary, many courts seem inclined to extend the remedy by attach- ment. They will sustain it in cases sounding in contract where the plaintiff swears to the amount claimed, or the amount in controversy can be defined with sufficient accuracy to enable the court to fix the bail to be given by the defendant in order to dissolve the attachment.* They hold that it is not necessary that the amount due on the contract shall appear from the contract itself, but that the amount of the indebted- ness may be shown by the affidavit.'' Where the provision is that the attachment can only issue on demands arising on con- tracts, they are inclined to apply it to cases on demands un- liquidated.^ They claim to "construe the statutes liberally with a view to carry into effect the obvious intent of the legis- lature," in permitting the recovery of damages for the breach of a contract ;* especially in cases where a defendant has no property in the state subject to execution, or not enough to satisfy the plaintiff's demand, and where the collection will be endangered by the delay in obtaining judgment.® But they will not construe it to include contracts enforcible properly only in courts of equity. An action between partners for an account- ing is not an action upon a " demand arising upon a contract," within the meaning of the Kansas code, so as to enable the plaintiff to attach the property of a non-resident.® In the judicial interpretation of the meaning of the word "contract " in the attachment law, opinions are as diverse as 1. Strock V. Little, 45 Pa. St. 416. garding the value of a certain mort- 2. Dunn v. Mackey, 80 Cal. 104. gage to be given in part payment, A's 3. Lenox v. Howland, 3 Caines (N. action against B for the price of the Y.) 323. See, also, post, § 19. cattle is an action on an express con- If an action be brought for the re- tract within the meaning of the at- covery of damages for the breach of tachment law permitting attachments an express contract, the charging of where the debt was fraudulently con- fraudulent representations will not tracted. Littlejohn v. Jacobs, G6 Wis. convert the action into one of tort, 600; and see further as to "fraud in and an attachment will be neverthe- contracting the debt," post, § 125. less sustained. Whitney v. Hirsch, 4. Runyon v. Morgan, 7 Humph. 39 Hun (N. Y.) 325. (Tenn.) 210., Where B, in selling cattle to A, 5. Francis v. Burnett, 84 Ky. 23. made fraudulent representations re- 6. Treadway v. Ryan, 3 Kan. 437. §16 WHAT IS DEMAND " ON CONTRACT." 23 in other matters of attachment. An action on an attachment bond is within the meaning of the Nebraska code, providing that an attachment for any claim other than a " debt," or " de- mand arising upon contract," and may be maintained by at- tachment against the property of a non-resident, although the damages are unliquidated.* A breach of covenant of war- ranty is a debt arising under a contract which may be recov- ered by attachment.^ And where one is under contract to pur- chase corn for another, who thereafter complains that the corn was not sound, but heated, sour and unmerchantable, his claim for damages will be a claim arising on a contract f so will an action against a railway company to recover upon coupons and scrip certificates representing interest payable semi-annually out of the company's net or surplus income ;* and so will the personal liability of a stockholder for his proportion of the corporate debts,® and for subscriptions to the capital stock.* But in an action for the recovery of damages for the loss, by negligence of a common carrier, of goods entrusted to him for transportation, is not " an action arising on contract."^ Nor is an action to recover back money deposited under an execu- tory contract, upon the ground of fraud in inducing plaintiff to make deposit, without any allegation of demand and re- fusal, under the New York code. The gravamen of the action is the fraud.* An action to enforce a liability conferred by a statute — in this case the recovery of costs — is not an action on a contract express or implied.* A statute which provides that "the remedy by attachment shall apply to all actions on demands, founded by any indebt- 1. Withers v. Brittian, 35 Neb. 436. Pac. Rep. 741 ; Flag v. Dare, (Cal.) 40 2. Cheney v. Straube, 35 Neb. 521 ; Pac. Rep. 804. Jeffry v. Wooley, 10 N. J. L. (5 Hals.) 7. Atlantic, etc., Ins. Co. v. iMc- 123. Loon, 48 Barb. (N. Y.) 27. 3. Lawton v. Kiel, 51 Barb. (N. 8. Knapp v. Meigs, 11 Abb. (N. Y.) 30. Y.) Pr. N. S. 405. 4. Seeley v. Missouri, K. & T. Ry. 9. Remington Paper Co.'JJ.O'Dough- Co., 39 Fed. Rep. 252. erty, 32 Hun (N. Y.) 255. 5. Kennedy v. California Sav. An attachment or warrant for sher- Bank, 97 Cal. 93, 31 Pac. Rep. 846. iff' s fees, quashed. Arrants v. Dum- 6. Kohler v. Agassiz, 99 Cal. 9, 33 agin, 1 Har. & M. (Md.) 218. 24 WHAT DEMAND WILL SUPPORT THE ACTION. § 16 edness, or for the recovery of damages for the breach of any contract, express or implied," etc., is construed to mean that, whenever assumpsit will lie for breach of an implied contract, attachment is maintainable to recover damages therefor, though the breach be tortious. Hence an attachment was sustained on an account containing an item of damages for injury to a horse, by overdriving, while in possession of a bailee for hire.^ A parol contract for the sale of land being excepted from the statute of frauds in Alabama provided the ''purchase-money, or a part thereof, is paid and the purchaser put in possession of the land," an attachment will issue for the balance of the purchase-money of land, though the purchaser never executed any written agreement to the purchase.^ The law implies a promise to refund the money paid, when the consideration for which it was paid entirely fails, hence, in such a case, attachment will be allowed to issue as on a contract.' When the whole transaction shows a mutual account, con- sisting of debits and credits, an attachment can not be main- tained upon the ground that the action is on an express contract for the payment of money, and that the indebtedness accrued for work and labor done and services rendered that should have been paid for upon completion.* 1. Nethery v. Belden, 66 Miss, per month by $130 as he would have 490 6 So Rep 464 been able to do had possession been Embezzlement bv a clerk is a delivered at the time agreed; that breach of a contract of employment, the damages sustamed between the Assumpsit is the proper form of ac- time the property should have been tion and attachment may issue. deUvered and the time it was dehv- Farmers' Nat. Bank v. Fonda, 65 ered was |494, making the total dam- Mich. 533; 32 N. W. Rep. 664. ages S968. Such affidavit sustained 2. Steadham v. Parrish, 93 Ala. an attachment under a statute per- 465, 9 So. Rep. 358. mitting a writ to issue in an "action An affidavit for an attachment stat- arising on a contract for the recovery ed that the defendant was a non- of money only." Fuller, J., dissent- resident of the state; that he had ing. Coats y. Arthus (S. D.), 58 N. sold certain lands to the plaintiff and W. Rep, 675. agreed to complete the building there- 3. Santa Clara Valley, etc., Co. v. on, but that he had failed to deliver Tuck, 53 Cal. 304. possession until a much later date. By 4. Morris v. Everly (Col. Sup.), 3ft reason of such delay the plaintiff was Pac. Rep. 150. unable to rent the places for as much § 17 ON CONTRACTS MADE OUTSIDE OF THE STATE. 25 Where the contract in regard to payment has been modified or waived by the claimant, an attachment will not be allowed ; as, in a case where the debtor failed to pay the price or value of an article or thing delivered, which by contract he was appointed to pay upon delivery and the vendor had waived the right to demand payment upon delivery;^ or where the goods were delivered without making demand at the time.^ On contracts the remedy by attachment is limited, as re- spects the cause of action, to debts contracted or owing by the defendant; hence, where bank notes are stolen, the thief is not liable to the bank in this process/ The writ of attachment can not issue in an action pending in the circuit court, on appeal by plaintiff from justice's judg- ment in his favor for a sum less than claimed by him, since such action, on appeal, is not an action ex contractu to recover money .* With an inclination to extend the operation of the process of attachment, it has been said that if the form of the action is ex contractu attachment will lie though the cause may have originally been ex delicto. It seems the tort may be waived and that, too, against an infant, and the attachment sustained/ § 17. (f ) On contracts made outside of the state.— It seems to be the policy of the attachment laws to restrict the advan- tages to be gained by an attachment process to domestic cred- itors. In some states there is also a special statutory provision requiring the contract to have been made in the state or to be there payable. A statute of Oregon permits an attachment upon contracts for the direct payment of money which are made or are payable in the state, and on contracts not made in the state when there is an express stipulation that it should be paid in the state.' And under the California code the contract must ex-' pressly stipulate that it must be performed within the state, 1. Young V. Lynch, 30 Kan. 205. 4. Zechman v. Haak, 85 Wis. 656, 2. St. Louis Type Foundry v. Union 56 N. W. Rep. 158. Printing, etc., Co., 3 Mo. App. 142. 5. Elwell v. Martin, 32 Vt. 217: 3. Piscataqua Bank v. Turnley, 1 see also imst, § 27. Miles (Pa.) 312. 6. Trabantu. Rummell, 14 Ore. 17. 26 WHAT DEMAND WILL SUPPORT THE ACTION. §§18,19 when it is made elsewhere.' But in Virginia, a claim arising on a contract of bailment made out of the state, against a non- resident, is a claim for debt, for which a foreign attachment in chancery has been sustained.^ In Pennsylvania it is held that residents in Canada, though citizens of the United States, and creditors of a European firm having property in the United States, are not domestic creditors, and therefore are not en- titled to a foreign attachment to subject such property.' A citizen of another state can sue out a writ of foreign attach- ment against a foreign corporation.* § 18. (g) On contract to marry. — ^The breach of a contract to marry has been held to be a money demand within the statute permitting attachment,® but an attachment thereon is not generally favored, because such breach of contract is said to rank among willful and malicious wrongs to the person and character, wherein damages are meted out to the delinquent party on the principle of punishment as well as upon the the- ory of pecuniary indemnity for the actual loss sustained. Therefore, unless an attachment for demands arising ex delicto is also permitted, attachment for a breach of contract of mar- riage will generally be denied; and if an attachment has issued in such case it will be set aside on motion.^ § 19. (h) On demand for damages unliquidated. — The rule in many states is that where the damages demanded by the plaintiff are merely speculative or uncertain, an attachment will not be issued to aid him in securing satisfaction of them,' 1. Eck V. Hoffman, 55 Cal. 501; The code of civil procedure of New Dulton V. Shelton, 3 Cal. 206. York expressly negatives the right to 2. Peter v. Butler, 1 Leigh (Va.) have attachment on contract of mar- 285. riage. Code Civil Procedure, 635. 3. Long V. Girdwood (Pa. Com. 7. Hugg v. Booth, 2 Ired. (N. C.) PL), 28 W. N. C. 229. 282; Deaver v. Keith, 5 Ired. (N. C.) 4. John] Ray Clark v. Toby Val. 374; Zerega v. McDonald, 1 Woods Supply Co., (Pa. Co. Ct. R.) 344. See 496; Hoover v. Hathaway, Soule & ante, § 17. Harrington, 20 D. C. 591 ; White v. 5. Morton v. Pearman, 28 Ga. 323. Goodson T. C. & S. M. Co., 24 Civ. 6. Barnes v. Buck. 1 Lana. (N. Y.) Proc. Rep. 411, 34 N. Y. S. 797. 268. § 20 FOR DEBTS NOT DUE. 27 even though resulting from the breach of an express contract/ because the sum due must generally be affirmed with certainty. The loss of profits which might have accrued to the plaintiff, had the defendant performed his contract, is such an uncertain amount as to preclude the right of attachment.^ However, many other states are so broad in their construction as to allow any creditor to have the aid of demands arising on contract, whether such demands are in strict debt, or for damages un- liquidated.* Under the Maryland code, when the plaintiff seeks the aid of a process of attachment to enforce an unliquidated demand he must give a specific bond that the defendant may be in- demnified in the event of his being damaged by such attach- ment. But in an action for damages for failure to sell a note at less than its face value, it was presumed that the damages was the difference between the face value and the agreed price, and it was held that the claim based on such breach was not one for unliquidated damages, and hence no such bond was required.* § 20. (i) For debts not due.— Even before the enactment of specific statutes enabling a creditor for certain causes to sue out an attachment on his demand before it had become due and payable, the courts were inclined to depart from the old rule and permit an attachment in such cases. It was long ago said that the process being legal, having issued on proper grounds, and a proper showing, the immaturity of the demand was not to be allowed to defeat a recovery.' And it was also allowed when the claim was only equitably due.® But the ex- 1. Garland v. Cunningham, 37 Pa. 35 Neb. 436, 53 N. W. Rep. 375; Cota St. 228. Compare Pollard v. Dwight, v. Mishow, 62 Me. 124. 4 Cranch. (U. S.) 421. 4. Dirickson v. Showell, (Md.) 28 2. Wilson V. Louis Cook Mfg. Co., Atl. Rep. 896. 88 N. C. 5. 5. McCullough v. Grishobber, 4 3. Lenox v. Howlaud, 3 Caines Watts & S. (Pa.) 201 ; Danforth v. (N. Y.) 323; New Haven, etc., Co. v. Carter, 1 Iowa 546; Brace i;. Grady, 36 Fowler, 28 Conn. 103 ; Baumgardner v. Iowa 352 ; Bacon v. Marshall, 37 Iowa Domagiac Mfg. Co., 50 Minn. 381, 52 581. N. W. Rep. 964; Withers v. Brittain, 6. Patrick v. Montader, 13 Cal. 434. 28 WHAT DEMAND WILL SUPPORT THE ACTION. § 20 istence of the debt at the time of the issuance of the writ was, and is, the condition on which the same must stand or fall, although the period of payment may not yet have arrived/ Attachments on demands not due, though allowed to be be- gun, must not be prosecuted to judgment before maturity of the demand. Such a judgment would be erroneous.^ Many special statutes now provide that an attachment writ may issue in certain cases before the demand is due and pay- able. It is, however, an almost universal condition precedent to the issuance of a writ of attachment for demands not due, when the same is allowed by statutory provision, that the par- ticular circumstances or conditions on which the same is al- lowable must be first made specifically to appear. Under the South Carolina statute providing that whenever a debt is not yet due, and it appears to the satisfaction of the circuit judge or clerk of the court that the debtor has departed from the state with intent to defraud his creditors, or to avoid service of sum- mons, or has removed or is about to remove some of his prop- erty, the plaintiff may issue his warrant of attachment as if the debt were due and payable; the plaintiff failed to bring him- self within such provision by an affidavit made at the com- mencement of the suit brought against the defendant as a for- eign corporation, when it was not made to appear therein that the debt was not yet due nor that the defendant was attempting any of the acts mentioned in the statute. The plaintiff was not entitled to an attachment as on a debt not yet due.^ The Mississippi code, giving the right to attachment for a debt not due, provides that the creditor " may obtain an attachment in the county where the debtor resides or last resided, or where his property may be found." Consequently, when the affidavit is for an attachment on a debt past due, and the declaration 1. Read v. Ware, 2 La. Ann. 498; 2. Rice v. Jerenson, 54 Wis. 248; Shannon v. Langiiorn, 9 La. Ann. Jones ^. Holland, 47 Ala. 732; Ware 526 ; Barriere v. Teste, 9 La. Ann. v. Todd, 1 Ala. 199. 535; Denegre v. Milne, 10 La. Ann. 3. Correll v. Georgia Construction 324; Todd v. Shouse, 14 La. Ann. and Investment Co. (S. C), 16 S. E. 426; Thomas v. Wetzler, 4 La. Ann. Rep. 156. 184. ^ 20 FOR DEBTS NOT DUE. 29 shows that it is not due and it is neither made to appear that the defendant is a resident of the county where the writ was is- sued; nor that his Last place of residence was there; nor that his property was found there, the writ will be quashed and the plaintiff will not be granted leave to amend the affidavit and writ so as to show an attachment to collect a debt not due.^ Under the laws of Washington, which provide for attachment on debts not due where the debtor has made a fraudulent dis- posal of his property, the allegation of the fact of such disposal is material and must be proved in order to justify the bringing of an attachment before such debt is due.' Where the affidavit on which it is based states none of the grounds for attachment on a debt not due, which are required by the statute, the pro- ceeding will be dismissed." Furthermore, the action niust be brought under a law permitting attachments to issue on de- mands not due, for if it be brought under another law, also then in force, the process will be quashed.* An action of attachment is an exception to the rule that no suit can be maintained on a promissory note, on the day it is due, but it can only be as upon a debt not due.* An action upon notes given for rent may be commenced in Iowa before they are due if nothing but time is needed to make the indebt- edness absolute, and it be alleged that the debtor is about to dispose of his property with intent to defraud his creditors.* The claim of the holder against the indorser of a promissory note, not due, is a ''debt" within the meaning of the Ohio code, authorizing attachments in certain cases, before a debt becomes due.' In West Virginia an accommodation maker of a negotia- ble note not due may sue in equity against an absconding 1. Yale V. McDaniel, 69 Miss. 337, 1869. Held, that the action was pre- 12 So. Rep. 556. maturely brought, since attachment 2. Cox V. Dawson, 2 Wash. 381, 26 under the act of 1869 does not lie for Pac. Rep. 973. a , -^ji vendor's store (and which, m the 2 7 Term (Eng K B.) 360 ; 3 Bingh. course of trade, is replenished through (Eng C. P.) 139; 6 Maule & S. (Eng. purchases made by the vendor with J^ g X ^4 ^ money turned over to him by the ven- 3.Vose'.. Stickney, 8 Minn. 75; dee as proceeds of 'f\fj'^'^ Shaughnessy .. Lininger and Metcalf goods) are attachable a suit against Co., 34 Neb' 747, 52 5. W. Rep. 717; the vendor^ and so are t^e new good Adoue .. Jemison, 65 Tex. 680. as well. Franklin .. Gumeisell, 11 4. Shannon v. Blum, 60 Miss. 828. Mo. App. 306. This is especially provided for by 6. Lee .. Bullard, 3 La. Ann^462 statute in Mississippi. Shannon .. 7. Taacks v. Schmidt, 18 Abb. (N. Blum, 60 Miss. 828. Y.) Pr. 307. 5. Burnell«.Robertson,5 Gilm.(Ill.) 282; Rogers v. Vail, 16 Vt. 327. 56 WHAT PROPERTY OR INTEREST MAY BE REACHED. §36 manufacturer in an unfinished state is attachable by his cred- itors.^ Property conveyed by a deed of trust and still remaining in possession of the grantor after default made, is not subject to be levied upon by attachment, when the deed gives the trustee power to sell so much of the property as will pay the demands then due; he has parted with the control of it.^ § 36. Chattels in the hands of a frandulent vendee. — Chat- tel property in the hands of a fraudulent vendee may be at- tached at suit of the vendor's creditors,^ because the title there- to has never passed from the vendor.* This principle applies so long as the chattel remains in the vendee's possession but not after he has sold it to innocent third parties or it has been attached or seized on execution against him.* But, though the sale vests title in the innocent purchaser, the money arising out of such a sale of the property will be liable to attachment 1. Manchester Mills v. Eundlett, 23 N. H. (3 Fost.) 271. Even where one contracted to build a house for another, on the land of the latter, fitted the blinds to the windows and took them off to paint them, according to the contract, it was held that they were his own prop- erty, while in his hands unfinished, and liable to be attached for his debts. Manchester Mills v. Eundlett, 23 N. H. (3 Fost.) 271. 2. Thompson v. Thornton, 21 Ala. 808. This is true, although only a por- tion of the demand secured is due and unpaid at the time of the levy of the attachment, and the property conveyed greatly exceeds the sum due. Thompson v. Thornton, 21 Ala. 808. What is not such a parting with the property in the case of a vessel, see Spring v. Baker 8 Allen (Mass.) 267. What assignment will pass title to a ship at sea, see Arnold v. Elwell, 13 Me. 261. 3. Starr v. Tracy, 2 Eoot (Conn.) 628 ; Pruden v. Leavensworth, 2 Eoot (Conn.) 129; Ketchum v. Allen, 46 Conn. 414. As to lands held under a fraud- ulent conveyance, see Eisley v. Welles, 5 Conn. 431 ; and post, § 54. 4. The New York code authorizes the sheriff to seize any property which the defendant has disposed of with intent to defraud his creditors. Einchey v. Stryker, 28 N. Y. 45, 31 N. Y. 140. A sheriff may in an action against him for wrongful attachment show that the conveyance under which the plaintiff claims was fraudulent as against creditors. Hall v. Stryker, 27 N. Y. 596. See post, "Liability of Execution Officer." Skinner v. Oet- tinger, 14 Abb. (N. Y.) Pr.l09; Bent- ley V. Goodwin, 15 Abb. (N. Y.) Pr. 82. 5. Gibbs V. Chase, 10 Mass. 125. § 37 CHATTELS IN A VENDEE's HANDS. 57 of the creditors.* Likewise, goods fraudulently conveyed to a third person may be subjected to the claims of bona fide cred- itors, in the hands of a garnishee.^ Mortgaged chattels which are sold by fraudulent collusion between the mortgagor and the mortgagee so as to prevent any surplus proceeds from arising, although there was no fraud in making the mortgage, comes within the Illinois statute ren- dering property sold with intent to hinder or delay creditors liable to attachment.' But under a statute permitting an at- tachment only "in an action upon a contract, express or im- plied," an attachment in an action founded on vendee's fraud and collusion with the plaintiff's debtor, whereby the latter's property was put out of reach of his creditors, gives the court no jurisdiction to render even a judgment in rem against the property of a non-resident who has not been personally served.* § 37. Chattels in a vendee's hands on a conditional sale.— Where personal property is sold, upon the express condition that the title shall not vest in the purchaser until the price agreed upon is paid, the purchaser has no attachable interest in the property or its increase until performance of the condi- tion.' He acquires no attachable interest by paying a portion only of the purchase-money.' And in order to enable a cred- itor of the vendee to attach and hold the property discharged from the claim of the vendor, he must pay or tender to the vendor 1 Dicken V. Hays, (Pa.) 7 Atl. Rep. has been attached in the hands of a 5g ■ fraudulent vendee, and by him re- An attachment being only author- plevied, is liable to a second attach- ized where the relation of debtor and ment, at the suit of another creditor creditor exists, it will not lie to sub- of the vendor. Jacobi v. Schloss, 7 iect property which has been bought Coldw. (Tenn.) 385. with money stolen from the plaintiff, 3. Laflin .. CentralPub. House, 52 that being a case arising 6x delicto, in 111. 432. See also "Ground for At- which the tort can not be waived, tachment," post, § 125. Union Bank v. Baker, 8 Humph. 4. Mudge .. Stemhart, 20 Pac. Rep. (Tenn ) 447 l^''' ''^ ^'^^- ^■*- 2.Fmnklin .. Larabee, 1 Root 5. Buckmaster .. Smith 22 Vt. 203; (Conn ) 488 Hunt v. Douglass, 22 \ t. 128. Property fraudulently sold, which 6. Smith v. Foster, 18 Vt. 182. 58 WHAT PROPERTY OR INTEREST MAY BE REACHED. § 37 the amount of his claim/ But the statute does not confer on the conditional buyer of personal property an attachable inter- est therein, when none of the purchase-money thereof has been paid by him.^ It is said that where one purchases the interest of both the vendor and the vendee in the property which was the subject of such conditional sale, he will hold it free from a subsequent attachment at suit of a creditor of the conditional vendee, notwithstanding the purchaser may have allowed the property to remain in the conditional vendee's possession un- der a new contract of bailment with him.' The following is given as an example of what is such a con- ditional sale as to defeat an attachment suit against the vendee in possession : By a written contract A agreed to let, and B agreed to hire, a carriage and horses belonging to A for a period of eight months at a rental of $12 per week payable weekly, at the end of which time B was to become the owner of the carriage and horses, should the rent be paid according to contract ; but in default thereof A was to have the right to take immediate possession and to retain the payments already made. B made several pay- ments and then made default in payment. The property was attached by one of B's creditors. A brought replevin, in which suit it was found as a matter of fact it was the intent of the parties to the contract that the title should not pass to B until full payment was made. It was held : (1) That the contract was not a sale, but only an executory agreement for a future sale upon the performance of the con- ditions named. (2) That A had the right of possession upon default of B, without previous demand. ( 3 ) That the interest of B in the property in question could not be reached by attachment for his debt.* 1. Hefflin v. Bell, 30 Vt. 134. 3. Wilder v. Stafford, SO Yt. 399. And that, in Vermont, within the 4. Hughes v. Kelly, 40 Conn. 148. time prescribed by statute. Hefflin In another instance a firm composed V. Bell, 30 Vt. 134. of C and P bought and took posses- 2. Eowan v. State Bank, 45 Vt. 160, sion of the goods on the promise that 195, C was to pay one-half the price, which 59 R 3g CHATTELS SUBJECT TO A LIEN. Property in possession of a conditional vendee before condi- tion broken is also beyond the reach of attachment at suit of a a vendor's creditors upon a contract of conditional sale, upon which the purchaser has paid a part of the purchase-price, ao-reeing to pay the remainder. The sellei- agreeing to convey the title when paid, such conditional purchaser has a good equitable title as against an attaching creditor of the seller, even though such creditor have no notice of the sale, and a payment by the purchaser of the remainder of the price and his acceptance of a deed without actual notice of the attach- ment vests in him the legal title also.' § 38. Chattels subject to a lien— (a) Generally.— There is such contrariety in the laws of the different states relatnig to the attachment of personal property on which some third party holds a lien, that it is difficult to lay down any rule that will be universal. Generally, chattels subject to a lien can not, un- less by virtue of a special statute, be attached. But this is for the protection of the party having the lien, and if he waive his objection to the attachment, it does not lie in the mouth o the general owner to complain. Such an attachment is not void, but only voidable at the election of the possessor o the lien ' Particular instances in which the various kinds of liens prevent an attachment will be pointed out in the succeeding five sections. , The interest possessed by one having a lien upon the prop- erty is not subject to attachment,' unless the holder of the lien has also the possession of the property, with a qualified interest therein.* he did; that P was to pay the other l^Barke .Johnson, 37 Kao. 837, half of the price, which he did not; ^^^--^f^^fwilson. IGallison (U. and that the vendors were o retain ^ Meeker.^ . ^ ^.^^^^_ an interest in the moiety until it was S^ 1st Uist^) , paid for. It was nevertheless held ««. H^563 ^^^ ^^_ ZZ!T^T^:r::^Z' Ts KUtrr:.°Snoiner,t.PicMMass, ^•H-50. \ See post, ^^1. 60 WHAT PROPERTY OR INTEREST MAY BE REACHED. § 39 § 39. (b) Chattels in transitu.— Property in the hands of a common carrier, consigned to an insolvent vendee, is still sub- ject to the vendor's right of stoppage in transitu and can not be attached as the property of the consignee,^ so as to affect the vendor's right of stoppage in transitu.^ But should the cred- itor conclude to take such chance he must then pay the car- rier's charges before attaching, and should the vendor then stop them, the attachment plaintiff will have to pay the price before he can acquire a right of property therein.^ It has been well said that when goods are shipped by order of the consignee and for his account, then he sustains the rela- tion of a purchaser, and the moment the goods are delivered to the carrier they have passed from the seller and are the prop- erty of the buyer, subject to the seller's right of stoppage in transitu, and may be subjected to an attachment at suit of the buyer's creditor, but when goods are shipped without order and on account of the shipper, he sustains the relation of principal and the consignee that of an agent or factor, and the shipper continues to be the owner, and an attachment will not lie at suit of a creditor of the consignee, but will at suit of a cred- itor of the shipper." As another test of the right to maintain attachment, it is said that where the shipper alone is entitled to the bill of lading, the right of possession is in him and goods can not be attached at suit of a creditor of the purchaser.* If the consignee is insolvent he will not be allowed to assign the incoming goods to a friend, with instructions to receive them for him, to the detriment of his attaching creditors.® I.Lane v. Jackson, 5 Mass. 157; 3. Kelly ■«. Deming, 2 McCrary 453; Bates V. New Orleans, etc., R. R. Co., Wolfe v. Crawford, 54 Miss. 514. 4 Abb. (N. Y.) Pr. 72, 13 How. Pr, 516. Common carriers, having in their 2. Buckley v. Furniss, 15 Wend. (N. possession a sealed package of money Y.) 137; Seymour v. Newton, 105 belonging to a resident of another Mass. 272; O'Brien v. Norris, 16 Md. state, who appeals and answers in the 122; Morris V. Shryock, 50 Miss. 590; action, maybe held as garnishees, Schwabacher v. Kane, 13 Mo. App. Adams v. Scott, 104 Mass. 164. 126. 4. Dickman v. Williams, 50 Miss. And a vendor with right of stoppage 500. in transitu may maintain trover for 5. Jones v. Bradner, 10 Barb. (N. them against an officer taking posses- Y.) 193. See, also, § 40. sion of them under attachment. Ins- 6. Scolfield v. Bell, 14 Mass. 40. lee V. Lane, 57 N. H. 454. ■§ 40 CHATTELS IN THE HANDS OF COMMON CARRIERS. 61 When the personal property has come into the actual or con- structive possession of the consignee, so that the title has passed to him upon the sale and delivery, it is then, of course, subject to attachment at suit of the vendee's creditors.^ §40. (c) Chattels in the hands of common carriers, ware- housemen, collectors of duties, or other depositary. — An at- taching creditor gets no greater right than the debtor had at the time of the seizure,^ unless he can show fraud or collusion by which his rights have been impaired.' Therefore where an owner can not take possession of the goods his creditor can not attach.* And, conversely, whenever the owner is in a position to sell or deliver, the creditor may seize by attachment.' Goods that have been shipped can not be attached by a credi- tor of the consignor after the bill of lading is in the hands of the consignee;^ for where the shij)per has lost all control over the goods and can not change their destination his creditor can not attach them for his debt.^ No person can attach property in the hands of a carrier without paying such carrier his legal freight and charges ; * not even the United States government.^ And especially is this true if the carrier has made advances on such goods.'" And where an officer, in attaching goods in the hands of a common carrier, pays to him his freight and charges, the officer is subrogated to the rights of the carrier in regard to his 1. What is such constructive posses- 7, Babcock v. Malbie, 7 Martin N. S. sion of property on board cars, see (La.) 137; Urie v. Stevens, 2 Rob. Hatch V. Bayley, 12 Cush. (Mass.) 27. (La.) 251; Stephenson v. Walden, 24 What is not such constructive pos- Iowa 84. session of personal property on board 8. Wolfe v. Crawford, 54 Miss. 514. cars, see Hatch v. Lincoln, 12 Cush. A captain of a ship was allowed to (Mass.) 31. retain goods on board the ship, to 2. Adoue V. Seeligson, 54 Tex. 593; satisfy his private demands against Mann v. Adams, 32 Iowa 165. the owner, as against attaching cred- 3. Samuels v. Agnew, 80 111. 553. itors of the owner. Parker v. M'lver, 4. Lambeth v. Turnbull, 5 Rob.(La.) 1 Desau. (S. C.) 274, 264. 9. De Wolfe v. Dearborn, 4 Pick. 5. Oliver v. Lake, 3 La. Ann. 78. (Mass.) 466. 6. McNeill v. Glass, 1 Martin (La.) 10. Brownell v. Carnley, 3 Duer (N. N. S. 261. Y.) 9. 62 WHAT PROPERTY OR INTEREST MAY BE REACHED. § 41 lien.^ Likewise goods held by a collector of revenues to en- force payment or security for duties can not be attached by the importer's private creditor.^ Goods stored in a warehouse are subject to the warehouse- man's lien, and can neither be attached at suit of the owner's creditor, nor at suit of the warehouseman's creditors ; but if money for the storage of such property be paid to the officer having possession under such an attachment, it will be liable to attachment/ This comes as near to showing that an agent or factor has an attachable interest in the property in his pos- session as any case we have seen, but in fact it only goes to the principle that the property of the debtor (warehouseman) may be seized wherever found.* § 41. (d) Chattels in the hands of a bailee for hire. — It is well settled that whenever the bailee has a right to retain the property in his hands until his lien thereon is satisfied, the property can not be attached at suit of the bailor's creditors.* So, too, where his contract of bailment gives him the right of possession for a specified time, the property can not be attached at suit of the bailor's creditors before the expiration of that time.® Where cattle were leased for a term of years it was said an attachment of them was invalid even though a sale there- under was made subject to the lessee's right to retain the pos- session of the cattle.^ Where the bailee has more than a mere lien and right of possession, that is to say, where he has a qualified property therein, his interest is attachable. The interest of the bailee in a chattel leased to be used by him for a certain time is at- 1. Thompson v. Rose, 16 Conn. 71. 4. Wheeler v. Smith, 11 Barb. (N. It has been once said that non- Y.) 345; Spencer v. Blaisdell, 4 N. resident common carriers can not be H. 198. proceeded against by foreign attach- 5. Truslow v. Putnam, 4 Abb. C. of ment for the loss of a trunk within A. 425 ; Ordway v. Wilbur, 16 Me. the state. Porter v. Hildebrand, 14 263; Hartford v. Jackson, 11 N. H. Pa. St. 129. 145. 2. Dennie ■». Harris, 9 Pick. (Mass.) B.Hartford v. Jackson, 11 N. H. 364; Dennie v. Harris, 3 Pet. (U. S.) 145. 292. 7. Smith v. Niles, 20 Vt. 315. 3. First Nat. Bank v. Hanchett, 126 111. 499. § 41 CHATTELS IN THE HANDS OF A BAILEE. 63 tachable/ unless his contract for use is without covenant for compensation.' In a well-considered case in Pennsylvania where A delivered cattle to B to handle and graze them for one year, under an agreement that he should receive all that they might produce on sale over and above the first cost and inter- est, it was held that B had a qualified property in the herd while in his possession which was attachable by his creditor. The court said that he could almost be considered as the purchaser and owner of the cattle subject only to pay the purchase-money and interest ; that he was a mortgagor in possession, but that upon redelivery of the cattle to A, B's right of compensation for the year's grazing became a personal right only, unaccom- panied by any lien, possession, or right of control to give him property in the cattle ; that his creditors could not levy an at- tachment upon them without becoming liable to A as a tres- passer.' Where the title to the property remains unqualifiedly in the bailor, the bailee has no attachable interest. For example: A contracted with B, the owner, to take a flock of sheep two years to pasture and shear them and deliver the wool to B who was to sell it and pay A one-half the proceeds, and A to rede- liver the sheep to B at the end of the term, when he was to give A one-half the increase. It was held that A had no attach- able interest in either the sheep or the increase.* A mechanic's or manufacturer's lien is said to be neither a jus ad rem or a jus in re, but a simple right personal to the party in whom it exists to retain the property, and that it is not assignable or attachable as personal property, or as a chose in action of the person entitled to it. 1. Wheeler v. Train, 3 Pick.(Mass.) Where boards were furnished to a 255 workman to make a desk at a fixed 2:Walcot .. Pomeroy, 2 Pick, price for the job, the property and nvr^^^ ^ l'>1 constructive possession were said to ^ In whicl "case both the officer and be in the «-Pl<>y-^ -^. ^^X/'^":;; the attaching creditor is liable to the ha.in. no a^chab. in.i^^even TM^erSne, 39 Pa. St. 50. X7^^<^ by\im Stevens . Briggs, 4. Tuohy V. Wingfield, 52 Cal. 319. 5 Pick. (Mass.) 177. 5. Lovett V. Brown, 40 N. H. 511; Townsend v. Newell, 14 Pick. 332. 64 WHAT PROPERTY OR INTEREST MAY BE REACHED. §§42,43 § 42. (e) Chattels held" under pledge. — The general rule is that chattels pledged are not liable to attachment as the prop- erty of the pledgor/ unless they remain in the possession of the pledgor.^ Generally, the possession of the pledged prop- erty by the pledgee is necessary to the validity of the pledge ; but this is a matter that is now largely controlled by special statutes to the contrary, as in the case of chattel mortgages.' The pledgee has the exclusive right to retain the property ; and in one case it was said that he might recover the whole value thereof from the attaching ofl&cer, even though it was pledged for less than its real value.* It was long said to be doubtful whether the attaching creditor had a right to remove the en- cumbrance or not.® This is now specially allowed by the pro- vision of the statutes in many states, but in no case can pawned or mortgaged property be attached without paying the amount for which it is held as security.^ A pledgee of per- sonal property is answerable in garnishment or trustee process onl}'- for the balance which remains in his hands after satisfy- ing his legal and equitable claims, but his right to sell the pledge is not affected by the attachment suit.' It seems that where the creditor himself is in possession of property which the debtor has pledged to secure his indebted- ness, the creditor can not attach other property of the debtor in an action to recover the debt without first returning the pledge.* But the rule seems to be different where the creditor does not have the possession of the chattel, but holds merely collateral security.^ § 43. (f) Chattels under mortgage. — The interest which a 1. Soule V. White, 14 Me. 436; Pic- 6. Blake v. Hatch, 25 Vt. 555. quet V. Swan, 4 Masn. (U. S. C. C.) 7. Chapman v. Gale, 32 N. H. 141. 443; Holbrooke. Baker, 5 Me. 309; 8. Cleverly v. Brackett, 8 Mass. Hill V. Simpson, 8 La. Ann. 45. 150. But compare Cornwall v. Gould, 2. Salinas City Bank v. Graves, 79 4 Pick. (Mass.) 444; Morse r. Woods, Cal. 192. 5. N. H. 300; Chapman v. Clough, 6 3. See post, § 43. Vt. 123. 4. Lyle v. Barker, 5 Binney (Pa.) 9. Peering & Co. v. Warren, 1 S. D. 457. 35, 44 N. W. Rep. 1068. 5. Surgent v.Carr, 12 Me. 396 ; Bad- lam V. Tucker, 1 Pick. (Mass.) 389. § 43 CHATTELS UNDER MORTGAGE. 65 mortgagor of chattels retains in the property mortgaged is the mere equitable right of redemption by paying the debt and such interest is not attachable/ unless made so by special statute.^ in states where mortgaged personalty in possession of the mortgagor is not subject to attachment for his debts, a tender of the mortgage debt after levy will not cure the ille- gality.' It is, however, true that whenever a statute permits an at- tachment of property which is subject to a chattel mortgage, the right of attachment must necessarily follow the right of possession of the mortgaged property, because the attaching creditor can acquire no greater right in the property than his debtor had.* The interest of a mortgagor of personal property is only subject to attachment when he has a definite and de- termined right of possession. Possession during the pleasure of the mortgagee is not sufficient.^ When the mortgagor's in- terest is attachable before default, it is only so when he is to retain possession.® Except where, notwithstanding the mortgage provides that the mortgagor may retain possession, he surrenders possession to the mortgagee.' The interest of 1. Haven v. Low, 2 N. H. 13; Cut- 4. See ante, §40. ler V. James Goold Co., 43 Hun (N. 5. Merchants' Nat. Bank v. Aber- Y.) 516; Sawyer v. Mason, 19 Me. nathy, 32 Mo. App, 211; Sams v. 49; Paul v. Hayford, 22 Me. 234; Armstrong, 8 Mo. App. 573. Libby v. Cushman, 29 Me. 429; Bar- As to the effect of the lien obtained rows V. Turner, 50 Me. 127; Ander- by the mortgagee of chattel property son V. Doak, 10 Iredell (N. C.) 295; and the manner in which seizure Peckinbaugh v. Quillin, 12 Neb. 586; thereof should be made, see post, §212; Williams v. Whoples, 1 Head (Tenn.) King v. Hubbell, 42 Mich. 597. 401. 6. Blauvelti;. Fechtman, 48 N. J. L. 2. For a construction of the Massa- 430,8 Atl.Rep.728;Fairbanks'y.Bloom- chusetts statutes providing various field, 5 Duer (N. Y.) 434; Livor v. modes in which this may be done, see Orser, 5 Duer (N. Y.) 501; Hall v. Porter v. Warren, 119 Mass. 535. See Samson, 23 How. (N. Y.) Pr. 84. also Haskell v. Gordon, 3 Mete. There is no difference in this re- (Mass.) 268, and Johnson v. Sumner, spect whether the mortgage is pay- 1 Mete. (Mass.) 172. able at a future day or payable on de- 3. Jennings v.McIlroy, 42 Ark. 236; mand. Livor ■«. Orser, 5 Duer (N. s. c. 48 Am. Rep. 61; Simonds v. Y.) 501. Pearce, 31 Fed. Rep. 137; Bank (. 7. Powers v. Elias, 53 N. Y. Supr. Oourdin, Speers, (S. C.) Ch. 439. Ct. 480. Att. 5 66 WHAT PROPERTY OR INTEREST MAY BE REACHED. § 43 the mortgagor in chattel property mortgaged when he is in pos- session, after condition broken, may also in some states be at- tached/ But the detention of the mortgaged chattel by an at- taching creditor is a conversion of the same for which an ac- tion will lie at suit of the mortgagee.^ Where the mortgagee has the title and the right of possession, and the property is at- tached by a creditor of the mortgagor, such attaching creditor becomes liable as a trespasser.' The mortgagor's interest in whatever proceeds may remain in the hands of an officer after mortgaged chattels have been sold and the mortgagee paid, is subject to a garnishee process served upon the officer in a suit brought against the mort- gagor.* Whenever a statute permits an attachment of the mort- gagor's interest in mortgaged chattels, the payment or tender of payment of the mortgagee of the amount of his demand is a condition precedent thereto. And if one attachment is dis- charged because of a failure to perform this condition, a second attachment which has complied with the condition is valid against the mortgagor.® The rule of law prohibiting the attachment of mortgaged chattels at suit of the mortgagor contemplates the protection of the mortgagee. Therefore, the attachment of mortgaged chat- tels by a creditor of the mortgagor is not void in itself, but at most is merely voidable at the election of the party having the lien, and if he waive his lien or confirm the attachment it is valid as to everybody.® 1. Carty v. Fenstemaker, 14 Ohio property from the attaching creditor, St. 457. after default, is under no obligation to In Rhode Island it may be attached pay or tender the costs. Livor v. Gr- after the condition of the mortgage ser, 5 Duer (N. Y.) 501. has been broken for sixty days. 3. Moore v. Murdock, 26 Cal. 514. Earle v. Anthony, 1 R. I. 307. In See "Liability of Plaintiff,"i?os«, §357. Vermont it may not be attached after 4, Hoffman t;. Wetherell, 42 la. 89. condition broken. Norris v. Sowles, 5. Wheeler v. Bacon, 4 Gray 57 Vt. 360. (Mass.) 550; Howe v. Tefft, 15 R. I. 2. Fairbanks v. Bloomfield, 5 Duer 477, 8 Atl. Rep. 707. (N. Y.) 434; Livor v. Orser, 5 Duer 6. Clement v. Little, 42 N. H. 563; (N. Y.)501. Hillu. Wiggin, 31 N. H. (11 Fost.) The mortgagee who demands the 292. 67 § 44 CHATTELS HELD BY AN ASSIGNEE. Where a creditor himself holds a mortgage upon chattels of his debtor it seems that he may, if he choose, waive his lien under the mortgage and sue out an attachment against the same property.' The interest of a mortgagee is not attachable when the chattel is still in the possession of the mortgagor without default.', Nor can it be made so by joining the mort- gagor and the mortgagee as defendants in an action on the joint debt.' § 44. Chattels held by an assignee.*— It is the general rule that property held by an assignee under a valid assignment for the benefit of creditors is not subject to attachment or garnish- ment for the assignor's debts.® Furthermore, the money obtained from an assignee's sale of the property of the debtor, belongs to the assignee for the bene- fit of all the creditors and can not be attached by one of them." And, though an attachment be maintained on the ground that the assignment was fraudulent, it will not cover money then collected by the assignee's attorney from claims due the as- signor.' Nor can the proceeds of a sale of property, trans- ferred by an alleged fraudulent assignment for the benefit of creditors, be attached or levied upon as the debtor's property." 1. Whitney v. Farrar, 51 Me. 418; valid so far as the attaching creditor William Deering & Co. v. Warren, is concerned. Rev. St. Mo., §2353; 1 S. D. 35, 44 N. W. Eep. 1068. Boltz v. Eagon, 34 Fed. Rep. 621. 2. Morton v. Hodgdon, 32 Me. 127, It has been held in Minnesota that 3. Murphy v. Galloupe, 143 Mass. property in the assignee's possession, ■'■-^- under a state insolvency law is not in 4. 33e also post, § 46, "Property in custodia legis, so as to exempt it from Custody of Law." an attachment from the United States 5. Schueter v. Raymond, 7 Neb. circuit court. Lapp v. Van Norman, 281 ; Lord v. Meacham, 32 Minn. 66. 19 Fed. Rep. 406. Even a statute providing that per- 6. McAllister v. Bailey, 1 N. Y. S. sonal property shall, in all cases, be 12 ; Hallowell v. Bayliss, 10 Ohio St. subject to execution on a judgment 636. obtained for the purchase-price unless 7. Re Foley, 10 Daly (N. Y.) 4. found in the hands of a purchaser, 8. Lawrence v. Bank of Republic, does not make personal property at- 35 N. Y. 320. tachable which is in possession of the It seems tliat the only remedy of debtor's assignee for the benefit of the reditor in such a case is to insti- creditors, when the assignment is tute a creditor's suit to fasten a trust 68 WHAT PROPERTY OR INTEREST MAY BE REACHED. § 45 A voidable assignment for the benefit of creditors, however, does not prevent an attachment of the assigned projDerty by creditors not parties to such assignment.' It seems, nevertheless, that an assignment of property for the benefit of creditors by virtue of a statute of another govern- ment, or sister sovereignty, does not affect a transfer of the bankrupt's title so as to cut off the liens of attaching creditors in a state other than the one under the laws of which the as- signment was made.^ Property assigned for the payment of debts may be attached by a dissenting creditor and be effective as to the surplus after the satisfaction of the demands of the creditors who have not dissented.' And when any property is assigned as security for a debt, any residue remaining in the hands of the assignee after the debt is satisfied may be attached, because such an as- signment leaves the assignor the owner of the residue.* Even a verbal assignment made in good faith, and for a valuable and adequate consideration, will transfer an interest in an ac- count so as to be effective against a subsequent proceeding in garnishment.' § 45. Chattels held by a trustee, — When property is con- veyed by a debtor to a trustee in an express trust — as that it be sold for the payment of certain debts — the property so con- veyed is not subject to attachment against the debtor until the upon such proceeds for the benefit of ive against the debtor, and the as- creditors and restrain the assignee signee may intervene and assert his from disposing of them. Lawrences, rights against the attachment plain- Bank of Republic, 35 N. Y. 320. tiff. Easley v. Gibbs, 29 la. 129. 1. Stevens v. Bell, 6 Mass. 339, 342. 5. Simpson v. Bibber, 59 Me. 196. By trustee process; Wyles v. Beals, See also "Garnishment," posi, Vol. II. 1 Gray (Mass.) 233; Edwards v. A garnishee in an action brought Mitchell, 1 Gray (Mass.) 239. See against S. M. R. answered that he had also pos*, Vol. II, "Garnishment. * funds of L. J. R. It was held that 2. Willetts V. Waite, 13 How. (N. his liability was not affected by as- Y.) Pr. 34. signment made by the defendant 3. Tood V. Bucknam, 11 Me. (2 after the service of the writ and be- Fairf.) 41. fore an amendment changing the ac- 4. Fithian v. N. Y., etc., R. R. Co., tion to one against "S. M. R., other- 31 Pa. St. 114. wise called L. J. R." Vermilyea v. Where a valid assignment has been Roberts, 103 Mass. 410. made garnishment will not be effect- § 45 CHATTELS HELD BY A TRUSTEE. 69 conditions of the trust are fully performed.' But any surplus remaining in the hands of the trustee after the performance of conditions may be the subject of an attachment.^ The trust, however, must be one that is just and equitable in its nature, or the property so transferred will still be liable in attachment. Property conveyed " in trust for the use and benefit of the said (debtor) and his immediate family, free from liability for any of his debts, contracts or engagements " was not thereby pro- tected from attachment.* Where there is fraud in the transfer, the property in the hands of the trustee is attachable.* The mere agreement to turn property over to a trustee for certain purposes is not effective as against attaching creditors. The property must be actually surrendered pursuant to such an agreement.® The trustee's interest in the property held by him in his own name in trust is not attachable at suit of his creditors unless they are bona fide creditors without notice of the trust.® The property bought with borrowed money, and held in secret trust, is attachable as the purchaser's property, notwithstanding the secret conditions of the trust.' 1. Anderson v. Doak, 10 Ired. (N. ative it will not entitle a creditor to C.) 295. recover of the trustee funds which he 2. McLaughlin v. Swann, 18 How. has received for property exchanged 217; Hearn v. Crutcher, 4 Yerg. for that conveyed, where there has (Tenn.) 461; Thompson v. Ford. 7 been no fraud on the part of the orig- Ired. (N. C.) L. 418. inal debtor. Sibley v. Johnson, 43 The trustee of an express trust may Vt. 67. be required to account for the funds 4. Horwitz v. Ellinger, 31 INId. 492. in his hands under a garnishment 5. Lynch v. Crary, 34 N. Y. Supr. process. McDonald v. Moore, 34 Ct. 461. Tex. 384. And in many states this is 6. Porter v. Bank of Eutland, 19 the better, if not the only proceeding. Vt. 410; Glidden & Joy Varnish Co. A bill of sale providing that part of v. Joy, 8 Ohio Cir. Ct. Rep. 157. the purchase-money should be paid to 7. Huntington v. Clemence, 103 certain creditors of the vendor does Mass. 482. not create a trust, unless the vendee It is a general rule in equity that agreed to make such payment. There- land held m trust is not attachable fore the unpaid balance on the bill of for the debt of a trustee, even though sale remains due to the vendor and the title stands of record in his name, may be attached by his creditors, and the creditor have no notice of the Kelly V. Babcock, 49 N. Y. 318. trust; and that if such an action be 3. Warner v. Rice, 66 Md. 436. begun at law it will be enjoined. But where a deed of trust is inoper- Houghton v. Davenport, 74 Me. 590. 70 WHAT PROPERTY OR INTEREST MAY BE REACHED. § 46 The interest of the cestui que trust is not attachable, because it is only a surplus in the hands of the trustee that is attach- able, and there can be no surplus belonging to the cestui que trust. ^ § 46. Chattels in the custody of the law.— Personal prop- erty in custodia legis is not subject to direct attachment. This rule is universal. What in some cases seems at first to be an exception is only the attachment of the then inseparable re- mainder after the law is fulfilled. This rule has been adopt- ed for the protection of the officer, and to avoid collision of authority and conflict of title. ^ The rule is the same whether the property is in custody of the law under a prior at- tachment ; ^ whether it has been taken on execution sued out on a judgment rendered in another form of action, and still in possession of the officer ; * whether it has been paid by him into the court,® or whether it has been voluntarily placed in the custody of the court. And this is true, even though the money may have been subsequently deposited in a bank to the credit of the cause then pending.^ Money in the hands of an officer can not be reached, because it does not become the property of the defendant until it is paid over to him.' Neither is it a debt due to the plaintiff in the pending suit, rendering the officer liable as a garnishee in attachment.® But a balance of money in the hands of a sheriff 1, Clark V. Ward, 12 Gratt. (Va.) 5. Farmers' Bank v. Beaston, 7 Gill 440„ & J. (Md.) 421; Alston v. Clay, 2 2. Davidson v. Kuhn, 1 Disney Haywood (N. C.) 171. (Ohio) 405. 6, Mattingly v. Grimes, 48 Md. 102. S.Powell V. Rankin, 80 Ala. 316; This has reference to money in spe- Kendrick v. B. and N. Y., etc., Rail- cie. As to garnishment see post, way Co., 3 R. I. 235. Vol. II. The sheriff acquires a special prop- 7. Turner v. Fendall, 1 Cranch (U. erty therein and is responsible for the S.) 117; First v. Miller, 4 Bibb (7 safe custody and return. Lathrop v. Ky.)311; Crane v. Freese, 16 N. J. Blake, 23 N. H. 46. L. 305; Thompson v. Brown, 17 Pick. 4. Hardy V. Tilton, 68 Me. 195 ; Red- (Mass.) 462; Dawson v. Holcomb, 1 dick V. Smith, 4 111. 451 ; Conant v. Ohio 275. Bicknell, 1 D. Chipman 50; Blair v. 8. Clymer v. Willis, 3 Cal. 363. See Cantey, 2 Speers 34 ; Prentiss v. Bliss, as to " garnishment " post. Vol. II. 4 Vt. 513 ; Dubois v. Dubois, 6 Cowen (N. Y.) 494. §46 CHATTELS IN THE CUSTODY OF THE LAW. 71 held, not in his official character, but in his private character, is attachable.* And money in the hands of a clerk of the court in his official character is not subject to attachment, but if it be held by him in his private character, it is not exempt from seizure thereunder.^ Property attached is considered in custody of the law until after it is disposed of under final judgment and can not be again attached by another officer,' Therefore if the property has been taken on a former attachment and surrendered to the defendant on his having given a bond therefor, it is still deemed to be within the custody of the law and not subject to attach- ment.* He must be permitted to keep possession and control of the property in order that he may be able to fulfill the con- ditions of his bond,® Money or property in the hands of a United States marshal under a process of a federal court can not be seized by a sheriff with the writ issuing from a state court. ^ The levy under one process withdraws the property from the reach of the other 1. Orrv. McBride, 2 Carolina L. Rep. 446 ; Eidson v. Woolery, 10 Wash. 225, 38 Pac. Rep. 1025. But the contrary is the rule in Ver- mont, where property has been at- tached, receipted for and left in de- fendant's possession, it is liable to attachment by another officer on an- other writ. Pond y. Baker, 58 Vt. 293. See further post " Property in Posses- sion of a Receiptor." 5. Roberts v. Dunn, 71 111. 46. If property be attached in the cus- tody of the law, a purchaser, under an execution sale, acquires no title and will be compelled, by the court, to surrender the property. He is a pur- chaser pendente lite. Hackley v. Swig- ert, 5 B. Mon. (Ky.) 86; Kane v. Pil- cher, 7 B. Mon. (Ky.) 651. 6. Likewise property held by a sheriff under attachment from a state court is not liable to be seized under process from an admiralty court of the United States. The Ship Orpheus, 3 Ware (U. S. Dist. Court, Me.) 143. 257. 2. Huntv. Stevens, 3 Ired. Law (N. C.) 365. There are a few cases, however, which hold that the surplus money of property in the hands of the officer belongs to the defendant and is not in the custody of the law. Tucker v. At- kinson, 1 Humph. (20 Tenn.) 300 ; Ben- son «. Berry, 55 Barb. (N.Y.)620. One maintaining that the surplus money in the hands of the officer, being the proceeds of a sale of land, is to be considered the land of the defendant and subject to attachment. Davison V. Clayland, 1 Harris & J. (Md.) 546. As to surplus in land see post, § 52, and Oldham v. Schrivener, 3 B. Mon. (Ky.) 579. 3. Metzner v. Graham, 57 Mo, 404. As to attachment by same officer under a later writ see post, § — . 4. Hagan v. Lucas, 10 Peters (U, S.) 400; McKinney v. Purcell, 28 Kan, 72 WHAT PROPERTY OR INTEREST MAY BE REACHED. § 46 process and there is no superiority of jurisdiction in either court. The officer first making the seizure has priority with- out regard to the date of the writ. Furthermore the marshal and sheriff can not make a partnership levy.^ Property in possession of a United States officer awaiting the payment of custom-house duties is in custody of the law and can not be seized by a state officer in execution of a writ of attachment.^ While it is true that property can not be twice seized ^ and that property in the hands of a sheriff of one court can not be ordered to be brought into another court* yet the sheriff may receive successive writs from the same court and hold the prop- erty subject to each of them successively.* An attempted seizure by another officer will create no lien/ even though the officer make an agreement concerning its possession,' and leave enough property in the hands of the first attaching officer to satisfy the lien of his attachment.* Two attachments can not be made by two different officers even though they be deputies of the same sheriff.^ And should one attempt to make a seizure while the property is in the custody of the other, an action will lie against the sheriff for the trespass." But property in the hands of a deputy sheriff may be attached by the sheriff, for 1. Burrell v. Letson, Strob. (S. C.) 4. Jones v. Jones, 1 Bland (Md. 239 ; Hagan v. Lucas, 10 Peters (U. S.) Ch.) 443. 400; Adlerr. Roth, 2 McCrary 445,5 5. Watson v. Todd, 5 Mass. 271; Fed. Rep. 895 ; Moore v. "Withenburg, Odiorne v. Colley, 2 N. H. 66; Bailey 13 La. Ann. 22; Taylor v. Carryl, 24 v. Childs, 46 Ohio St. 557. See also Pa. St. 259, 20 How. Sup. Ct. (U. S.) Adams v. Lane, 38 Vt. 640. 583; Freeman v. Howe, 24 How. Sup. 6. Beers v. Place, 36 Conn. 578; Ct. (U. S.) 450; Lewis v. Buck, 7 Bradley v. Kesee, 5 Cold. (Tenn.) 223. Minn. 104 ; Smith v. Bauer, 9 Colo. 7. Burroughs v. Wright, 19 Vt. 510. 380. 8. Burroughs v. Wright, 16 Vt. 619 ; But it seems a federal court may West River Bank v. Gorham, 38 Vt. grant permission to proceed in a state 649; Walker t?. Foxcroft, 2 Me. 270; court, by replevin, against the mar- Vinton w. Bradford, 13 Mass. 114. shal who executed the writ when the 9. Strout v. Bradburj-, 5 Me. 313 ; title to the property is questioned. Vinton v. Bradford, 13 Mass. 114; Weil V. Smith, 11 Colo. 310. Moore v. Graves, 3 N. H. 408. 2. Harris v. Dennie, 3 Peters (U. 10. Robinson v. Ensign, 6 Gray 300; S.) 292. Thompson n. Marsh, 14 Mass. 269. 3. Thompson v. Marsh, 14 Mass. 269. § 4f CHATTELS IN THE CUSTODY OF THE LAW. 73 since a deputy is a servant of the sheriff the possession of the former is the possession of the latter.' Property in the hands of an executor or administrator or of a guardian or conservator or of any such personal representative, is in custodia legis and can not be attached.^ Property in the hands of a receiver or trustee duly appointed by a competent court is in custody of the law and can not be attached .^ Property in the hands of a master in chancery, in a pro- ceeding where an order has been entered that such property be deposited with the master until the further order of the court, is in custody of the law and can not be attached.* Property in the hands of a garnishee is, in some states, said to be in custody of the law and not subject to attachment." But in other states goods in the hands of a garnishee may be attached, but the attaching officer must hold subject to the lien of the creditor, who previously summoned the garnishee,* because the plaintiff in the garnishment acquired a lien prior to the plaintiff in a subsequent attachment." The right of an attachment plaintiff to follow the attached property into the hands of third persons, who have acquired rights from the owner after the attachment, is a matter that has been the subject of much litigation and the whole matter seems to depend upon the reality of the sheriff's possession un- der the attachment. The possession of a keeper or custodian 1. Watson V. Todd, 5 Mass. 271. one in possession, for conversion of 2. See post, § 83. mortgaged property. Straw v. Jenks, 3. County of Yuba v. Adams, 7 Cal. 6 Dak. 414, 43 N. W. Rep. 941; Citi- 35; Peregov.Bonesteel,5Bissell (U.S.) zens' Nat. Bank v. Jenks, 6 Dak. 432. 66;Whihelmv.Miley,5Serg.&R.(Pa.) 4. Kenzie v. Noble, 13 Rich. Law 137; M'Cready ?j. Guardians, 9 Serg. (S. C.) 147. & R. (Pa.) 94; Skinner v. Stuart, 39 5. Northfield, etc., Co. v. Shapleigh, Barb. (N. Y.) 206; AVhitmarsli v. 2 Neb. 635; Scholefield v. Bradlee, 8 Campbell, 2 Paige (N. Y.) 67. Martin (La.) 495; Dennistoun v. N. In Dakota it is held that the prop- Y. C. Co., 6 La. Ann. 782; Brashear u. erty of an insolvent debtor, in the West, 7 Peters (IT. S.) 608. hands of one seeking to become a pre- 6. Burlingame v. Bell, 16 Mass. 318. ferred creditor by mortgage, in a suit 7. Sweet v. Brown, 5 Pick. (Mass.) against the debtor, action will lie 178. against the attaching officer by the 74 WHAT PROPERTY OR INTEREST MAY BE REACHED. §§ 47,48 is the possession of the sheriff himself ; unless the plaintiff in the attachment is himself the keeper and suffers the property attached to be taken out of his possession and sold without any steps having been taken to regain the possession, in which case he can not disturb the title of the purchaser.* The property is in custody of the law so long as the officer holds as such, even though the creditor and debtor may have adjusted their mat- ters, if the attachment has not in fact been dismissed.^ Goods seized by the sheriff as the property of a named de- fendant in one writ may subsequently be attached by the same officer on another writ as the property of another person named as defendant, who is the actual owner, in a suit by the same plaintiff.' § 47 . Chattels owned by a copartnership — ( a ) Generally.* — In contemplating the attachment of personal property owned by a copartnership, two questions incidentally arise : Is the de- mand sought to be enforced a demand against an individual partner, or is it an indebtedness of the copartnership? In other words, is the purpose of the attachment to enforce the payment of an individual debt, or of a firm debt? Then the further question arises : Has the ground or condition on which the law permits an attachment to be made arisen against every member of the firm, or against one member only? These ques- tions will be taken into consideration separately. If the de- mand is against the firm as a whole, and the grounds for at- tachment exist as to every member thereof, the proceedings in attachment against the firm will, of course, be similar to pro- ceedings in attachment against an individual who is not a member of a copartnership on his sole indebtedness. ^ § 48. (b) For the firm debt, when the grounds for attach- ment have not arisen as to all the members. — The different 1. Whann v. Hufty, 12 La. Ann. 3. Livingston u. Smith, 5 Peters (TJ. 280; post, "Possession of Attached S.) 90. Property." 4. See, also, post "Tenants in Com- 2. Dixon i;. Barnett, 29 Pac. Rep. mon,"§82. 209, 3 Wash. St. 645. 5. Post, § 81. § 48 CHATTELS OWNED BY A COPARTNERSHIP. 75 states seem to take one of three different views regarding the bringing of attachment against the partnership property when the grounds therefor do not exist as against all the members thereof — as, for example, where one member of a partnership is an absent or absconding debtor, and the other member or members continue to reside in the state and carry on the co- partnership business. The first class holds that when a ground for attachment is given by one member only of the copartner- ship, no attachment can be made upon the copartnership property for the firm debt. The second class holds that the at- tachment may be brought, but only as against the interests of the individual giving grounds therefor, and on the partnership debt. The third class holds that when a ground for an attach- ment is given by one member of the copartnership, an attach- ment may issue against the entire copartnership, and the property of the firm seized. These will be given in their order. The first class holds that the fact that one of two partners has been guilty of fraudulent acts, and has thereafter abscond- ed, will not authorize the attachment of all the property of the firm when the other partner remains in the state and is not guilty of the fraud. ^ When one is a non-resident of the state and the other is a resident, attachment will not lie against both.' It can not issue against the firm unless all the mem- bers have absconded or kept concealed, or given other grounds on which an attachment may issue, ^ unless the firm is insolv- ent,* or unless it be alleged and shown that the other obligors have no property subject to execution sufficient to pay the de- mand, and that it would be endangered by delay.' If the affi- davit in attachment is good as to one only, the writ can not 1. Bogart V. Dart, 25 Hun (N. Y.) Worthley v. Goodbar, 53 Ark. 1, 13 S. 395 W. Rep. 216. 2. Taylor v. McDonald, 4 Ohio 149; 4. Ogilvie v. Washburn 4 Greene Wallace v. Galloway, 5 Coldw. (45 (Iowa) 548; Courner v. Clegliorn, 6 Tenn.) 510; Barber t). Robeson, 15 N. Greene (Iowa) 523. ,, .,. ^ J L (3 Green) 17 5. Dunn's Trustee v. McAlpm, 90 '3. Leach V. Cook, 10 Vt. 239; Will- Ky. 78, 13 S. W. Rep. 363. iams V. Muthersbaugh, 29 Kan. 730; 76 WHAT PROPEKTY OR INTEREST MAY BE REACHED. § 48 issue against all.' It will be well, however, to remember that while the residence of a member may be sufficient to defeat the attachment in such cases, when raised by a plea in abate- ment, yet it must be pleaded in apt time. The objection comes too late after appearance and entry upon the trial on the merits.^ Maryland states emphatically that in a suit against a firm, where process is served on one of the partners, the partnership assets can not be seized and condemned by a proceeding in at- tachment against another partner who has absconded.^ Louisi- ana, while making a modification of this rule by requiring that the place of business of the firm is out of the state,* holds that the residence of one member of the firm gives a jurisdic- tion to partnership matters, and states further, that while the proposition is correct that the projierty of one can not be attached to pay the debt of another, yet ''the attachment in this state of the interest of a non-resident in the property of a foreign commercial firm, for a debt due a citizen of this state, is not forbidden by any law or opposed by any consideration of public policy, but, on the contrary, is recommended as a mat- ter of remedial justice in favor of our citizens."^ In North Carolina it has been held that if the only resident member of a firm give notice that he is about to leave the State, and is ready to answer any suit that may be brought against him, the prop- erty of the firm can not, after his departure, be attached for a partnership debt due before the notice.^ The second class holds that where one member of a firm re- sides out of the state or absconds or gives other ground for at- 1. Hamilton v. Knight, 1 Blackf. against the firm, and the writ shall (Ind.) 25. issue against the property of such as But where both reside out of the are so brought within the provisions state the affidavit need not recite that of the law, the summons to issue the contract is joint. Dobbs u. The against all the joint defendants. Col- Justices, 17 Ga. 624. See also post, lier •):. Hanna, 17 Atl. Eep. 390, 71 Md. §127 et seq, "Affidavit." 253. 2. Voorhees v. Hoagland, 6 Blackf. 4. Shirley v. Bride, 5 La. Ann. 260 ; (Ind.) 232. Barriere v. McBean, 12 La. Ann. 493. 3. Johnston «. Mathews, 32 Md. 363. S.Taylor v. Kehlor, 28 La. Ann. By virtue of the code the residence 530. of two partners, within the jurisdic- 6. Robinson v. Crowder, 1 Bailey tion of a court, is sufficient, in a suit, (S. C.) 185. j 48 CHATTELS OWNED BY A COPARTNERSHIP. 77 tachment, his interest only in the firm assets maybe attached/ upon a debt due by the partnersliip.^ The sheriff can, how- ever, sell only his undivided moiety in the property of the firm/ He can not take the partnership effects, because the remaining partner has the right to retain the possession of the partnership property or have it applied to the payment of the partnership debts.* The separate property of him alone who gives ground for attachment is liable thereto.^ If a partner- ship consists of two members, and only one of them is a non- resident, a firm creditor by attachment of the firm property, can gain no priority over other firm creditors, except as to the non- resident partner's individual interest.® The issuance of an at- tachment of the property of one member of the firm only, on a firm debt holds only the interest of such partner, after the pay- ment of all the partnership debts/ and if the firm is in fact in- solvent, it holds nothing.* The third class of cases holds that the absence from the state (or other cause of attachment) of one copartner authorizes an attachment against him and his copartners, to subject the part- nership property to the payment of copartnership debts. ^ In South Carolina, a partnership debt is a joint debt, and the code provides that where one joint debtor is served, judgment may be entered against all the defendants jointly indebted, and may be 1. McHenry v. Cawthorn, 4 Heisk. ant, are not to be protected from a for- (Tenn.) 508 ; Buckingham v. Swezey, eign attachment. Caldwell v. Barclay, 25 Hun (N. Y.) 84 ; Conklin v. Harris, 1 Dall. 305, note. 5Ala. 213; Green v.Pyne,! Ala. 235; 5. White & Schnebly's Case, 10 Jefferson County v. Swain, 5 Kan. Watts (Pa.) 217. 376. 6. Andrews v. Mundy, 36 W. Va. 22, 2. Chipman's Case, 14 Johns. (N. 14 S. E. Rep. 414. Y.) 217. 7. 4 Robt. 106. 3. Mersereau v. Norton, 15 Johns. 8. Doane v Lindsay, 42 N. Y. Sup. (N. Y.) 179. Ct. 399. 4. Chipman's Case, 14 Johns. (N. 9. Jefferson County v. Swain, 5 Y.) 217; Smith's Case, 16 Johns. (N. Kan. 376; Conklin v. Harris, 5 Ala Y.) 102; Robbins v. Cooper, 6 Johns. 213; Randall v. Johnson, 13 R. I. 338 (N. Y.) Ch. 186; Taylor v. Kehlor, 28 Wilcox v. Carey, 9 Dana (Ky.) 297 La. Ann. 530; Austin v. Burgett, 10 Moore v. Simpson, 5 Litt. (Ky.) 49 Iowa 302. Watts v. Griffin (Ky.), Litt. Sel. Cas. The effects of an American consul, 244 ; Miles v. Brown,^59 Ky. 404 ; Dun- residing abroad, and who was engaged can v. Headley, 67 Ky. 45. in partnership with another defend- 78 WHAT PROPERTY OR INTEREST MAY BE REACHED. § 49 enforced out of the joint property of all/ And in New York a like rule obtains, and without notice or publication as to the one not served joint property so attached may be sold on exe- cution, if plaintiff obtains judgment on the joint liability.^ § 49. (c) For the individual debt of a copartner.— The in- terest of a member of a copartnership in the firm assets is the share to which he is entitled under the copartnership agree- ment after all the partnership debts are paid, and if the assets be insufficient the individual interest will be nothing.^ This is the universal holding of all the states, but thereunder one class holds that the partnership property can be seized under execution against one member for his individual debt and sold; but that the interest which passes is only the interest of the debtor in the residuum of the partnership property after settle- ment of the partnership debts;* that is to say, the interest sold under the execution issued on the judgment obtained on the attachment will be subject to the prior rights and liens of other partners and joint creditors therein.^ But no specific asset, credit, or personal property of the partnership can be seized on execution or attachment against one of the copartners.® And if such levy be made it will be a trespass.' There is no differ- ence between a levy in attachment and a levy of execution in this respect, for whatever property a sheriff may take on execu- tion he may seize and take on attachment also. He must there- 1. Whitfield V. Hovey, 8 S. E. Rep. The levy will be subject to all the 840, 30 S. C. 117. partnership accounts; and in that re- 2. Yerkes v. McFadden, 36 N. E. speet debts and other choses in action Rep. 7, 141 N. Y. 136. will not be distinguished from tangi- 3. Staats v. Bristow, 73 N. Y. 264; ble personal property of the firm. Day Newman v. Bean, 21 N. H. 93 ; United v. McQuillan, 13 Minn. 205. See also States V. Williams, 4 McLean (U. S.) "Garnishment," posi, Vol.11. 236; Thomas v. Winchester Bank, 6. Levy v. Cowan, 27 La. Ann. 556; (Ky.) 31 S. W. Rep. 732. Alexander v. Burns, 6 La. Ann. 704; 4. Robinson v. Tevis, 38 Cal. 611. Hutchinson v. Dubois, 45 Mich. 143. 5. Jones V.Thompson, 12 Cal. 191, 7. Sirrine v. Briggs, 31 Mich. 443; 199; Barber U.Hartford Bank, 9 Conn. Haynes v. Knowles, 36 Mich. 407; 407; S. P. Church v. Knox, 2 Conn. Sanborn v. Royce, 132 Mass. 594; 514; Burgess v. Atkins, 5 Blackf. Cropper v. Coburn, 2 Curtis (U.S.) (Ind.) 337; Douglas v. Winslow, 20 465. Me. 89; Smith's Case, 16 Johns. (N. Y.) 102. § 49 INDIVIDUAL DEBT OF A COPARTNER. 79 fore, in making an attachment, levy upon the interest of one of the several copartners for his individual debt, seize and take possession of the entire leviable property of the copartnership.^ But such taking of possession of the whole by the officer is merely incidental and should be in harmony with, and not in hostility to, the rights of the other partner so far as the same is possible.^ It is both the privilege and the duty of the sheriff to seize the whole of the partnership goods, but he can only sell the un- divided moiety or share of the individual partner therein, against whom the attachment is sustained. And if he deems it advis- able, to prevent their being wasted or carried away, he has the right to take the goods into his actual custody and possession, and another partner can not maintain an action of replevin therefor." If the sheriff sells the entire property it is a con- version and he is liable in trover or trespass for the other share.* The sale by the sheriff does not divest the joint owner of his title.' But the sheriff is not liable in damages to the other party when he sells only the part belonging to the indi- vidual debtor.^ The purchaser becomes a tenant in common with the other partner, subject to the right of such other, and through him the partnership creditors may have the property applied to the payment of the joint debts.' This may subject him to an accounting among the partners," and it seems that the right obtained by purchase at a sheriff's sale of such undi- vided moiety must be enforced in a court of equity. The sher- iff must for the time being, in order to make the sale, have the 1 Smith V. Orser, 42 N. Y. 132; .. Bullard, 3 La. Ann. 463; Andrews MarBhall .. McGregor, 59 Barb. (N. ^^^1^%,,,^,; Bradley 2 Atkins. Saxton 77N.Y. 195; ^. Arnold, 16 Vt. 382 ; White t.. Mor- 2. Atkins V. baxton, ''/^- "■■ ' ^^y. ^^. Melville ?;. Brown, 15 Wier Plow Co. r. Armentrout, (Tex. ^^^' ^t J Vi^' . i _, t .nrv 17 Pick Civ. App.) 28 S. W. Rep. 1045. Mass 82 ; Eldndge .. Lancy, 17 Pick. 3. Davis .. White, 1 Houst. (Del.) (^4 Maf 352^ .„ -^ . „^ n„^,. loPrMi,! 44- 5. White -y. Jones, 38 111. l&y. 228 ; Remmington v.Cadj, lOConn.44 Lawrence v. Burnham, 4 ISlev. 361 Reed v. Howard, 2 Met. (Mass.) 36 Waldman v. Broder, 10 Cal. 378 Cboppin V. Wilson, 27 La. Ann. 444 6. Clark v. Gushing, 52 Cal. 617. 7. Randall v. Johnson, 13 R. I. 338; Bernal v. Hovious, 17 Cal. 542. 8. Hergman v. Dettlebach, 11 How. Levy V. Cowan, 27 La. Ann. 556; Lee (^M. Y.) rr. *d 80 WHAT PROPERTY OR INTEREST MAY BE REACHED. § 49 custody of the entire property.^ But he can not make a par- tition of the property.^ The sheriff may relieve himself from all liability, by delivery after sale to the original co-tenant.' The purchaser of a partner's interest in the partnership prop- erty is not entitled to take possession of any part of the property.* While the attachment of partnership property, by a creditor of an individual member of the firm, will be good against all creditors whose demands are not upon the firm,^ the creditors of the firm have a preference over the individual partner, and especially so where there are judgments entered in both cases.® There is a small class of cases which holds that the goods of the partnership can not be seized on an execution or attach- ment for the individual debt of the partner. And that the creditor can have only the right of his debtor in the surplus after the partnership debts are paid, and that this does not en- title the creditor, nor the officer seizing his interest, to the ex- clusive possession of the partnership property.' Yet, never- theless, this class still holds that the interest of one partner in the property of the company, though incapable of actual seiz- ure and reduction to possession, is liable to an attachment and levy, and to sale upon execution. The peculiar nature of the interest, w^hile being such as to allow the security to be im- 1. Newhall v. Buckingham, 14 111. 5. Phillips v. Bridge, 11 Mass. 249; 405 ; Reed V. Howard, 2 Mete. (Mass.) Pierce v. Jackson, 6 Mass. 242. 36; Walker V. Fitts, 24 Pick. (Mass.) 6. Commercial Bank v. Mitchell, 191; Eldridge v. Lancy, 17 Pick. 58 Cal. 42-49; Pierce v. Jackson, 6 (Mass.) 352. Mass. 242. 2. Veach v. Adams, 61 Cal. 609. If in an attachment against one per- 3. Frost V. Kellogg, 23 Vt. 308. son, the entire property of a firm be 4. Darbarrow's Appeal, 84 Pa. St. seized as the sole property of the debt- 404; Bank v. Carrollton R. R., 11 or, it can not be justified by proving Wall. (U. S.) 624-8-9. that he has an interest in such prop- If the partnership funds are reduced erty as a partner. Zoller v. Grant, 3 to money, the court will only order N. Y. S. 539, 56 N. Y. Super. Ct. 279. such sum to be paid over as belongs 7. Hill v. Wiggin, 31 N. H. 292 ; to the partners sued, and may, in its Gibson v. Stevens, 7 N. H. 352; Pat- discretion, order security to be given terson v. Trumbull, 40 Ga. 104. for that moiety until a settlement is made between the partners. Chatzel V. Bolton, 3 McCord (S. C.) 33. § 50 PARTNERSHIP EFFECTS ABTER INSOLVENCY. 81 paired, yet constitutes no exemption.* Where the sheriff can not seize the goods of the firm, but can levy only upon the in- terest of the partner in the firm,^ the attachment does not amount to a statutory assignment of the partner's interest in unsettled partnership accounts. The lien acquired is not a specific thing. It is only a result. A specific debt or demand may be liquidated and still have an independent existence sus- ceptible of attachment, but the partner's interest in unsettled accounts is not attachable, nor can a bill in equity be main- tained upon them. A bill is supplemental and not ancillary to the attachment.' However, a valid lien against a debtor, who is a member of a partnership, may be acquired by attaching all his interest in the effects of the firm, and summoning the other members of the partnership as garnishees. And such lieu may be pre- served by giving notice to the parties concerned, and such other acts designed to give notoriety to the attachment as the nature of the property will admit, even though possession can not bo taken and the property removed to the exclusion of the other partners.* § 50. (d) Of partnership effects after insolvency or disso^ lution. — Although a copartnership may have been dissolved, it still exists for the purpose of liquidation, and the partnership property is still liable to attachment to that end." The different members of an insolvent firm are not each entitled to his indi- vidual exemption from the partnership property seized for a partnership debt.* But where one member of a firm has be- come the owner of the firm property by its dissolution before it is attached by a firm creditor, he may claim an exemption therein.' Partnership property may also be attached by a cred- 1. Dow tJ. Sayward, 14 N. H. 9. 290. See further as to "Garnish- 2. Vandike v. Rosskam, 67 Pa. St.. ment," post. Vol. II. 33Q 5. Lobdell v. Bushnell, 24 La. Ann. 3. Alter v. Brooke, 9 Phil. (Pa.) 295. .^ , i ^o 258 ; Knerr v. Hoffman, 65 Pa. St. 126. 6. Richardson v. Adler, 46 Ark. 43. 4. Treadwell v. Brown, 43 N. H. 7. State v. Thomas, 7 Mo. App. 205. Att. 6 82 WHAT PROPERTY OK INTEREST MAY BE REACHED. §§51,52 itor of an individual member after the dissolution of the part- nership, and after a receiver has been appointed by a decree of a court in equity, in a sister state.* When the firm is insolvent, the property of an individual partner may be attached.^ § 51. (e) Of effects in the hands of a surviving partner. — A surviving member of a copartnership holds the late firm's property jure propWo. It is his duty to settle up the partner- ship affairs and thereafter to account to the representative of the deceased partner. So long as the partnership affairs are unsettled, the partnership is considered to have a limited ex- istence for the purpose of closing up the business, and an at- tachment may be resorted to, to enforce that end. The sur- viving partner is considered to be tlie owner of the partnership effects for that purpose, and the execution may be brought against him as surviving partner.^ § 52. What real property or interest therein — Generally. — The rule regarding the attachment of real property is the same as that relating to the attachment of personal property. What- ever may be taken on execution may be taken on attachment. There are few exceptions to the rule that where the debtor holds a legal title to real estate, such real estate may be the subject of a levy in attachment.* But when the debtor holds merely 1. Schatzill V. Bolton, 2 McCord (S. nagle, Pet. C. Ct. 249 ; Johnson v. Bur- C.) 478. nett, 12 Ala. 743 ; Wood v. Thomas, 2 2. Buckingham v. Swezey, 25 Hun Head (Tenn.) 160; Hackett ?;. Callen- (N. Y.) 84. ' der, 32 Vt. 97. 3. Krueger v. Spieth (20 Pac. Rep. The interest of a miner in a mining 664), 8 Mont. 482; Cobb v. Spieth (20 claim may be taken in attachment. Pac. Rep. 806),8 Mont. 494; Maxey w. McKeon v. Bisbee, 9 Cal. 137; Hal- Spieth (20 Pac. Rep. 806), 8 Mont, sey v. Martin, 22 Cal. 645. 494 ; Bozeman Nat. Bank v. Spieth, Land can not be levied on by do- (20 Pac. Rep. 806), 8 Mont. 495; Fer- mestic attachment under the South guson V. Spieth (20 Pac. Rep. 807), 8 Carolina act of 1785. It authorizes Mont. 493. the attachment of such effects only 4. Isham v. Downer, 8 Conn. 282; as are capable of being removed. Davidson v. Beatty, 3Har. & J. (Md.) Jamieson v. Brodrick, 1 Brev. (S. C.) 594; Barney v. Patterson, 6 Har. & 396. J. (Md.) 182; Hough v. Smoot, 2 Pennsylvania act of 1879 "relative Cranch C. Ct. 318; Graighle v. Not- to fraudulent debtors" has been con- § 52 REAL PROPERTY OR INTEREST THEREIN. 83 an equitable title, or an equity of redemption, there is a contra- riety of opinion in this regard, as will be subsequently shown.* It is said in California that the term ''land" embraces ail titles, legal and equitable, perfect or imperfect, including such rights as lie in contract, those executory as well as those exe- cuted, and that any interest in land, legal or equitable, is there- fore subject to attachment or execution.^ And in New York any interest in land capable of being alienated is attachable." But many of the other states do not make so broad an applica- tion of the term. It has been frequently held that the mere right of a widow to have her dower assigned to her is not such an interest in land as may be conveyed by her.* And that therefore it can not be attached,® until after it has been as- signed.® A tenancy by the curtesy initiate is, for the same reason, not subject to attachment.' It seems, however, that where the land has been ordered to be appraised in proceedings in partition but which has not been accepted or sold at the date of the recovery of a judgment against a tenant by the curtesy initiate, he has an interest which may be attached.* In some states, by virtue of a special statute, any estate in lands or tenements of a duration longer than one year is deemed to be real estate, and if attached must be levied upon as such.' strued not to provide for attachment 9. Mayhew v. Hathaway, 5 R. I. of real estate. Continental Nat. Bank 283; Norris v. Watson, 22 N. H. (2 V. Draper, 89 Pa. St. 446. Fost.) 364. 1. See j9os«, §§58-59. That the interest of a tenant in 2. Fish V. Fowlie, 58 Cal. 373. crops and stock that are raised on 3. Higgins v. McConnell, 130 N. Y. shares is not attachable see Lewis 482, 29 N. E. Rep. 978. v. Lyman, 22 Pick. (Mass.) 437; Mil- 4. Ritchie v. Putnam, 13 Wend. (N. ler v. Baker, 1 Mete. (Mass.) 27 ; Y.) 524. Chandler 17. Thurston, 10 Pick. (Mass.) 5. Nason v. Allen, 5 Greenl. (Me.) 205. As to attachment of crops, see 479. ante, § 32. 6. Waller v. Mardus, 29 Mo. 25. In Georgia land can not be levied A widow's release of dower is not a upon and sold under an order of the conveyance, but only an instrument magistrate in an attachment return- which operates against her by estop- able to a justice's court. It must be pel. Frence v. Lord, 69 Me. 537. taken by virtue of an execution issu- 7. Greenwich Nat. Bank v. Hall, ing upon the judgment in attachment. 11 R. I. 124. Rogers v. McDill, 9 Ga. 506. And in 8. Lancaster County Bank v. Stauf- Mississippi an attachment issuing for fer, 10 Pa. St. 398. a sum not exceeding $50 can not be 84 WHAT PROPERTY OR INTEREST MAY BE REACHED. § 52 Both real and personal property being liable to attachment, an attachment of real estate is valid, though the defendant has personal property sufficient to satisfy the demanded debt/ Since real estate can not be taken into the possession of the officer making the attachment as personal estate may, some no- toriety must be given to the act in order that the public may know that such a levy has been made. This will receive fur- ther attention under the subject of the service of the writ and the making of the levy.^ But it may be well to state here that whatever act the statute prescribes in that regard, the perform- ance thereof is the very essence of an attachment of real es- tate and must be performed with certainty. ^ The officer can not take possession of real estate and turn out the defendant or any other person, unless, possibly, when injury to the property itself is apprehended. Nor is such an act necessary to the validity of the levy.* When the officer has made such indorsement or memorandum as is by law required, he need make no vocal proclamation of the attachment.® The lien of the attachment dates from the time of the indorsement.® Unlike the lien created by an attachment of personal prop- erty, the lien created by an attachment of real property is dis- solved and wholly lost if the defendant die before judgment is rendered thereon,' even though the suit is revived and car- ried on to judgment against the heir.' The lien is created by the levy and fixed by the judgment. It is effective from the time of the levy, and is paramount to a judgment entered after the levy and before the judgment in attachment,^ and is to be preferred to subsequent judgments and to purchasers and levied on real estate. Plummer v. 5. Rogers v. Bonner, 55 Barb. (N. West, 41 Miss. 69. Y.) 9. 1. Isham v: Downer, 8 Conn. 282. 6. Riordan v. Britton, 69 Tex. 198. . See "the Execution of the Writ," posf, 7. McClellan v. Lipscomb, 56 Ala. §§ 200, et seq. 255. 2. See post, § 214. 8. Phillips v. Ash, 63 Ala. 414. 3. Kittredge v. Bellows, 7 N. H. 9. Ensworth v. King, 50 Mo. 477; 399. Harbin v. Carson, 4 Dev. & B. (N. C.) • 4. Wood V. Wier, 5 B. Mon. (Ky.) L. 388. 544. § 53 LAND PREVIOUSLY CONVEYED. 85 mortgagees/ And the lien created by the attachment stands on as high and equitable grounds as a mortgage on the same land.^ The lien can only be released or discharged by the creditor himself. The officer has no control over the lien, be- cause he acquires no specific property in land by means of his levy thereon.' § 53. Land previously conveyed. — Although an attachment creates a lien paramount to any right acquired by alienation, either by the act of the defendant or the operation of law,* as shown in the above section, yet since the lien takes effect at the time the levy is made, the rule in most states is, that the levy will not cut off the rights of a person who has acquired title in good faith, even though his deed be not recorded and the attaching creditor have no notice of the conveyance.* Es- pecially where the grantee is in possession.® Open and exclu- sive possession of land, with claim of title for any considerable time, will, in Vermont, affect an attaching creditor of a third person (in whom the record of evidence of title is), with no- tice of a deed from his debtor to the party in possession, though such deed were recently given and recorded.' The registry in California does not protect attaching creditors, but only pur- chaser or mortgagees for value, from an unrecorded deed.® In Missouri an unrecorded mortgage takes priority over an at- tachment, provided it is recorded before judgment land sale on execution in the attachment suit.' But this is not so in Kan- sas if the attaching creditor has no notice of the existence of the mortgage." If the grantee of an unrecorded deed has con- 1. Schacklett & Glyde's Appeal, 14 Compare Jones v. IMitchell, 158 Pa. St. 326. Mass. 385, 33 N.E. Rep. 609. Stevens 2. Carter v. Champion, 8 Conn. v. Morse, 7 Me. (7 Greenl.) 36. 549. 6. United States v. Howgate, 2 3. Brayley v. French, 28 Vt. 546. Mackey (D. C.) 408; Kent v. Plum- Furtlier as to "The Lien Created by mer, 7 Me. (7 Greenl.) 464. Attachment," see post, § 313. 7. Rublee v. Mead, 2 Vt. 544. 4. Grigg V. Banks, 59 Ala. 311. 8. Plant v. Smythe, 45 Cal. 161. 5. Cox V. Milner, 23 111. 422 ; Harral 9. Reed v. Ownby, 44 Mo. 204 ; Sap- V. Gray, 10 Neb. 186; Savery v. pington v. OeschH, 49 Mo. 244. Browning, 18 Iowa 246. Contra Stowe 10. Northwestern F.Co.v. Mahaffey, V. Meserve, 13 N. H. 46; Garwood v. 36 Kan. 152. See further as to prior- Garwood, 9 N. J. L. (4 Hals.) 193. ities of liens, ;)o.s<, § 401. 86 WHAT PROPERTY OR INTEREST MAY BE REACHED. § 53 veyed the premises to another and the last deed has been re- corded before the attachment, this can not be regarded as giv- ing notice of sucii unrecorded deed.^ Even where such grantee gave back a mortgage to the grantor at the same time, and this mortgage was recorded before the attachment, the recording of the mortgage is no notice of the unrecorded deed.^ Where the party suing out the attachment is bound by law to take notice of a paramount outstanding equitable title, or where he has actual notice thereof, the attachment of a merely legal title can not be made to operate as against the equitable owner of the real estate.* Land previously conveyed by a minor, by a deed which has neither been avoided nor confirmed by him after coming of age, is not liable to an attachment at suit of his creditors.* In Massachusetts an attachment of the interest of one tenant in common in land is paramount to a partition unknown to the attaching creditor at the time of his attachment.® And he may, after judgment, levy his execution on the whole estate in common.® But in Maine the levy of the attachment does not prevent the other owners from procuring legal partition of the estate. Such partition, however, will not destroy the attach- ment lien. It will remain on that part of the real estate set off to the debtor.' Where there is an unrecorded defective deed conveying the debtor's land, such debtor still has an interest in the land sus- ceptible of being attached. If such land is attached and sold 1. Roberts v. Bourne, 23 Me. 165. be charged with the knowledge of the 2. Veazie v. Parker, 23 Me. 170. previous conveyance. Hovey v. Blanch- Where one conveyed land to an- ard, 13 N. H. 145. other by a deed duly executed and 3. Tucker v. Vandermark, 21 Kan. acknowledged, and before the deed 263. was recorded, procured a writ to be 4. Kendall v. Lawrence, 22 Pick. made upon a note upon himself and a (Mass.) 540. third person, and caused the land to 5. McMechan v. Griffing, 9 Pick. be attached in the name of such third (Mass.) 537. person and execution was subse- 6. Munroe v. Luke, 19Pick (Mass.) quently levied thereon, it was held 39. that the third person, if he would 7. Inhabitants of Argyle v ^winel, avail himself of the attachment, must 29 Me. 29. §§ 54, 55 LAND CONVEYED IN FRAUD OF CREDITORS. 87 as the property of the vendor, a purchaser without notice of the equity will take good title thereto.^ § 54. Land conveyed in fraud of creditors.— Attaching creditors have a right to treat a previous conveyance of the land attached as having been made in fraud of them, and when such fraud is established in the conveyance, the attach- ment creates a lien with the same effect as though no convey- ance had been made.^ And a general attachment of all a debtor's interest in any real estate in the county will be suf- ficient to hold real estate fraudulently conveyed by him by a deed duly recorded.' And one who subsequently, and with notice of the attachment, purchases the land from the alleged fraudulent grantee, took subject to all equities which could be enforced against him.* But if a conveyance of land be fraudu- lent as to creditors, the title has nevertheless passed to the grantee and will remain in him until some creditor defeats it by the levy of an execution ; and when defeated, it is then not rendered void ab initio, but only from the time when the cred- tor levied upon it. Therefore, if the grantee has entered into possession, and cultivated the land upon his own account, the creditors of the grantor can not attach the annual crops. They can only attach and levy upon that which their debtor owned and fraudulently conveyed.* § 55. Land held in trust. — It may be said in general, that where the title to land is held in trust for another, such cestui que trust has an interest therein susceptible of attachment.® The trustee can not be charged for the real estate in possession; but he may, by reason of the real estate, be indebted to the principal in such a manner as to render him chargeable.' An 1. Paine v. Mooreland, 15 Ohio 278; Bray v. Wallingford, 20 Conn. 435. 416. 2. McKinney v. Farmers', etc., As to "Garnishment," see i)o s« Bank, 104 111. 180; Williams v. Mich- Vol. II. enor, 11 N. J. Eq. (2 Stockt.) 520. 7. Wright v. Bosworth, 7 N. H. 590., 3. Pratt V. Wheeler, 6 Gray (Mass.) One who holds lands in trust for the 520. separate use of the wife can not be 4. Arper v. Baze, 9 Minn. 108. charged, by reason of such land, as 5. Jones v. Bryant, 13 N. H. 53. the trustee of the husband. Wright 6. Davenport v. Lacon, 17 Conn. v. Bosworth, 7 N. H. 590. 88 WHAT PROPERTY OR INTEREST MAY BE REACHED. § 56 attachment issued and laid in the hands of a trustee may be effective upon a sum ascertained by a final account to be the distributive share of the debtor. But it can not, before a final account, affect the fund or the trustee, or compel any modifica- tion of the final account for the benefit of the attaching cred- itor.' • Although a conveyance to a trustee may have been fraudu- lent as to creditors, yet if the creditors have not avoided the conveyance, the trustee will not be charged, in foreign attach- ment, for the income of the lands conveyed to him by the prin- cipal debtor and his wife.^ And a trustee who, in fraud of the creditors, acquires land of a defendant in attachment, and aft- erwards sells it, is only chargeable for the profit of the transac- tion.^ The interest which a trustee himself holds subject to the equity of his cestui que trust is not subject to attachment.* For though he has the record title of real estate, he is still in fact but a trustee thereof, and his creditors, though ignorant of the trust, can acquire no right to the land by attachment or levy, as against the cestui que trust ; and a court of chancery will, where the trustee is in equity bound to convey the property to the cestui que trust, decree a conveyance to the latter from the levying creditor.' § 56. Land owned by one when consideration paid by an- other. — If one person pays his own money and procures a con- veyance of land or a transfer of a mortgage to a third person he has no attachable interest in the land so conveyed.® If A conveys land to B on a consideration moving from C, C will have no attachable interest in the land.' Real estate of which the debtor has only an instantaneous 1. McPherson v. Snowden, 19 Md. 5. Hart v. Farmers', etc., Bank, 33 197. Vt. 252. 2. Heywood u. Brooks, 47N.H.231. 6. Reed v. Woodman, 4 Me. (4 3. Pittsfield Bank v. Clough, 43 N. Greenl.) 400; Kempton v. Cook, 4 H. 178. Pick. (Mass.) 305. 4. Piatt V. Oliver, 2 McLean (TJ. S.) 7. Howe v. Bishop, 3 Mete. (Mass.) 267. 26. § 57 LAND OWNED JOINTLY. 89 seizin is not subject to attachment.^ For example, A conveyed land to B, merely for the purpose of enabling B to convey the same to C, and B conveyed the same to C accordingly. Before the deeds were recorded S attached the land as the property of B, and subsequently levied an execution thereon. It was held that B had no attachable interest in the land after he had con- veyed it to C, and that S could not hold the land against C.'' §57. Land owned jointly. — ^The interest of one tenant in common in real estate may be the subject of attachment.' And if a creditor attaches the estate of his debtor held in common with others, it seems that it will not prevent the other part owners from procuring a legal partition of the estate, and that such partition if made will not vacate or destroy the attach- ment, but the attachment lien will remain on that part of the estate set off to the debtor. But if the attachment be followed by judgment and execution and there has been no partition of the estate, the levy can not be legally made upon the debtor's estate as a common and undivided estate, in disregard of the rights of others legally acquired. To be effectual to convey the title the levy must be made upon the estate assigned to the debtor to be by him held in severalty.* When a plaintiff obtains a judgment against two defendants on a demand which is both joint and several, he may levy an attacnment on the interests of both defendants in land, whether their interests therein be joint or several.® Where a husband and wife hold real estate, and the old rule as to tenancy still maintains, they each hold the land by en- tireties and the whole estate will go to the survivor upon the death of the other.' Neither is seized of a moiety and neither has separate attachable interest during the lifetime of the other.' 1. Chickering v. Lovejoy, 13 Mass. 5. Hewitt v. Durant, 78 Mich. 186, 51. 44 N. W. Rep. 318. 2. Haynes v. Jones, 5 Mete. (Mass.) 6. Jackson v. Stevens, 16 Johns. (N. 292. Y.) 110. 3. McMechan v. Griffing, 9 Pick. 7. Taul y. Campbell, 7 Yerg. (Tenn.) (Mass.) 537; Munroe V.Luke, 19 Pick. 319; Brownson v. Hull, 16 Vt. 309; (Mass.) 39. Fairchild v. Chastelleux, 1 Pa. St. 176 ^ 4. Inhabitant of Argyle v. Dwinel, 29 Gibson v. Zimmerman, 12 Mo. 385. Me. 29. 90 WHAT PROPERTY OR INTEREST MAY BE REACHED. § 58 Where each owns title to real estate separately, the land of each is of course attachable to enforce a demand against the owner. Where real estate, the title to which was in the name of S. H. Loring, was attached in one suit as the property of Sarah H. Loring, and, in another, as that of Sheldon H. Loring, who was Sarah's husband, it was held that the burden of proof was upon the party claiming that the last attachment was en- titled to priority, to show that the property belonged to the husband.^ § 58. Equities in land — Generally. — The rule generally ob- tains that a mere equity in land is not attachable and that only a legal interest in land may be attached. A few states, how- ever, permit it, but the right depends upon the provisions of the statutes and the constructions the courts have given there- to. In Tennessee it is said that an attachment issued by a court of law can not be levied upon property of an equitable nature. Attachments are there permitted in courts of equity, but the bill must be framed with that view.^ And unless par- ticularly indicated, an attachment upon land as the property of the defendant will be construed as intending to attach a legal interest. Therefore, if the defendant have only an equity, a sale under such attachment will convey no title.^ Likewise, in Virginia, the attachment of an equitable interest in the land is only accomplished by a bill in equity properly framed.* In California, where the word " land " embraces all title, legal or equitable, perfect or imperfect, including such rights as lie in contracts, any interest in land is subject to attachment or ex- ecution.* So also in Kansas attachment may be levied upon land, although the debtor holds only the equitable title, and the legal title is in another.® And in Kentucky an equitable in- terest in real estate owned by a non-resident is subject to levy and sale, under a general attachment.' Connecticut declares 1. Allen V. Loring, 37 Iowa 595. 4. Barksdale v. Hendree, 2 Patt. & 2. Hillman v. Werner, 9 Heisk. (65 H. (Va.) 43. Tenn.)586. 5. Fish v. Fowlie, 58 Cal. 373. 3. Lane v. Marshall, 1 Heisk. (57 6. Bullene v. Hiatt, 12 Kan. 98. Tenn.) 30. 7. Bank of Louisville v. Barrick, 1 Duv. (Ky.) 51. § 59 EQUITY OF REDEMPTION. 91 that the great principle of our law regulating the intercourse of debtor and creditor is, that all the property of the debtor shall be responsible for the debts of the owner. This not only includes the fee, but equitable interest, estates for life or years and an equity of redemption.* The Illinois law provides that the legal or equitable interest of a debtor in land may be seized on attachment. This will include the equitable estate of a married woman given her for life in a marriage settlement.^ § 69. Equity of redemption. — The courts of last resort of the difierent states are divided on the question as to whether or not an equity of redemption is an interest in land susceptible of attachment. In Connecticut and Vermont it is said that the attachment of an equity of redemption creates a lien in favor of the attaching creditor, giving him the same right to redeem that his debtor has.' And he may redeem from a prior incum- brance, even before judgment, in order to make his own claim beneficial to himself.* In New Hampshire,* Massachusetts,® and Maryland, an equity of redemption of real estate is liable to attachment.' In Maine the mortgagor's right in the mort- gaged premises may be attached after having tendered to the mortgagee the amount of his claim, and mere inconvenience, however great, in making such a tender, will not authorize him to disregard any plain provisions of the statute.* In Ten- nessee a creditor of a non-resident debtor may attach the debtor's right of redemption in land sold under execution, and 1. Bray v. Wallingford, 20 Conn, tor in real estate available against the 416. attaching creditor of the grantor, he 2. Wallace v. Monroe, 22 111. App. must prove the registry of the deed in 602. the proper office or notice of the at- If real estate is attached and anoth- taching creditor, before attachment, er person claim to own it, it is error Slocum v. Catlin, 22 Vt. 137. to make him a co-defendant. Boston 5. Eastman v. Knight, 3-5 N. II. 551. V. Wright, 3 Kan. 227. 6. Bigelow?;.Willson,l Pick. (Mass.) 3. Lyon v. Sandford, 5 Conn. 544; 277, 485; Bacon v. Leonard, 4 Pick. Chandler v. Dyer, 37 Vt. 345. (Mass.) 277. 4. Chandler v. Dyer, 37 Vt. 345. 7. Pratt v. Law, 9 Crauch (U. S.) If a grantee seek to make a deed of 456. the equity of redemption of the gran- 8. Foster v. Perkins, 42 Me. 168. 92 WHAT PROPERTY OR INTEREST MAY BE REACHED. § § 60, 61 subject such interest to the satisfaction of his demand. But this must be done in a court of equity.* § 60. Mortgagee's interest. — As a general rule the mort- gagee of real estate has no attachable interest in the land under his mortgage, before a foreclosure thereof, even when he has entered into possession.^ Even after condition broken by the mortgagor and entry upon the premises by the mortgagee, the mortgagee has no attachable interest in such real estate.' The mortgagee in possession under the mortgage has no attachable interest until such title is perfected; that is to say, not until complete foreclosure and the equity of redemption is cut off by the lapse of time required therefor by the statute.* In one case, however, in Massachusetts, where a mortgagee was in possession of the real estate covered by his mortgage and was also in possession of some machinery located thereon, an at- tachment of the machinery was permitted, although the same was fixed to the real estate.^ In Vermont a mortgagee has an attachable interest in the lands mortgaged.® § 61. Legal title subject to the equity of redemption.— The purchaser of real estate on the foreclosure of a mortgage has no attachable interest in the real estate purchased until the ex- piration of the time in which the statute prescribes that such real estate may be redeemed from the mortgage.' In proceed- ings commenced against a non-resident by attachment of land, where it appears that before conveyance to the defendant the legal title was conveyed to the sheriff, under the insolvent 1. Herndonw. Pickard,5Lea(Tenn.) bia Bank v. Jacobs, 10 Mich. 349; Mc- 702. Gurren v. Garrity, 68 Cal. 566 ; Marsh In Mississippi a judgment creditor v. Austin, 1 Allen (Mass.) 235; Port- is not a purchaser for value within the land Bank v. Hall, 13 Mass. 207 ; Eaton meaning of the statute, but is a mere v. Whiting, 3 Pick. (Mass.) 484; volunteer and can not levy an attach- Blanchard v. Colburn, 16 Mass. 345. ment. Kelly v. Mills, 41 Miss. 267. 3. Crocker v. Bank, 24 Me. 185. 2. Lincoln v. White, 30 Me. 291 ; 4. Thornton v. Wood, 42 Me. 282. Thornton v. Wood, 42 Me. 282 ; Smith 6. Gale v. Ward, 14 Mass. 352. V. People's Bank, 24 Me. 185; Mc- 6. Barrett v. Sargeant, 18 Vt. 365. Laughlin v. Shepherd, 32 Me. 143; 7. Rogers v. Wingate, 46 Me. 436; Courtney v. Carr, 6 Iowa 238; Colum- Thornton v. Wood, 42 Me. 282. ^ 62 INTEREST OF LEGATEES, ETC. 93 laws, subject to redemption by the grantor on payment of the debts, and that the right of redemption had been sold by order of the court in an action pending at the time of conveyance to defendant, the action was not sustained.' § 62. Interest of legatees, devisees, reversioners, remain- dermen, etc. — In Pennsylvania the rights of legatees, devisees and other like rights are liable to» attachment.' And in New Jersey a mere personal legacy is not attachable, unless charged on real estate. It may then be attached in the devisee's hands for the debt of the legatee.' In Michigan a farm was devised to the testator's wife for life, subject to the payment out of the proceeds therefrom of certain legacies, and after the widow's death the balance of the farm was to go to the testator's two sons ; and it was held that the interest of either of the sons was liable to attachment by a creditor.* But in Tennessee, where a testator left all his property to his widow, to be used by her for the support and education of their children, allow- ing her, at any time she might choose, to advance a portion of the estate among the children, it was held that the children had no such vested interest in the real estate as to be subject to attachment by their creditors.' So, too, in North Carolina, a testator bequeathed as follows : "I give and bequeath to my sons. A, B, C and D, and their heirs, four hundred and forty acres of land, my two negroes, which I wish sold, and the proceeds equally divided among my said four sons, etc., after my funeral expenses and debts are paid out of the same," and it was held that the sons did not take such an estate in either the land or negroes as to be subject to execution or attachment, but that they were only entitled to divide the proceeds of the sale of the property which the executor was directed by the will to make.' In Vermont a testator devised one-half his farm to his son, the use of the other half to his widow, and empowered l.Culbertson's Representative v. 4. Hewitt v. Durant, 78 Mich. 186, Stevens, 82 Va. 406, 4 S. E. Rep. 607. 44 N. W. Rep. 318. 2. Roth's Appeal, 94 Pa. St. 186. 5. Sturm .. White, 8 Baxter (Tenn.) 3. Woodward v. Woodward, 9 N. J. 197. ,, .^ ., t t a L (4 Hals ) 115 6- McLeran v. McKethan, 7 Ired. (N. C.) Eq. 70. 94 WHAT PROPERTY OR INTEREST MAY BE REACHED. § 63 the executor at her decease to sell her half, pay a certain part of the proceeds to his daughter and the balance to the son. The executor declined the trust, but the son, widow and daugh- ter paid the debts. At the widow's decease one-half the farm was worth only as much as was to be given to the daughter. The son and daughter treated the farm as belonging to them jointly, carried it on under an agreement by which each was to own one-half, and share alike, and the sister's share was set apart for her. It was held not to be within their power to make such arrangement, and that, therefore, what was the sis- ter's share could not be attached by the brother's creditors.* In Maine a reversionary interest in the lands is liable to at- tachment.^ But in South Carolina a parent settled upon his daughter, at her marriage, certain property, with a reversion to himself in the property in case of her dying without issue dur- ing his life, and it was held that his reversionary interest could not be affected by his creditors.' A contingent equitable interest in real estate is not attach- able at law.* Neither can the judgment creditor of a remainder- man reach an interest in the money paid into court in proceed- ings to condemn the land for a railroad, so long as the life es- tate exists.® § 63. Interest in land under contract to purchase. — In states where equitable interests in general are not attachable, a person having only a right to the title to land upon the payment of a certain sum has no attachable interest in the land before the title is so acquired.® A purchaser of land even though in pos- session has not an attachable interest in the land, before taking a conveyance, unless the purchase-money has been fully paid.' Therefore the interest a debtor acquires in the land, by a con- tract with the owner to cut and manufacture the timber on the 1. Hawkins v. Hewitt, 56 Yt. 430. by the curtesy initiate, see ante, § 52. 2. Moore v. Richardson, 37 Me. 438. 6. Garlick v. Robinson, 12 Ga. 840, 3. Le Prince v. Guillemot, 1 Rich. The attaching creditor will get no (S. C.) Eq. 187. title to land when the attached debtor 4. Kendall v. Gibbs, 5 R. I. 525. gets his title after the attachment is 5. Kansas City, Springfield, etc., levied. Crocker v. Pierce, 31 Me. 177. R. R. Co. V. Weaver, 86 Mo. 473. 7. Richards v. M'Kie, 1 Harp. (S. As to dower, interest and interest C.) Ch. 184. § 63 LAND UNDER CONTRACT TO PURCHASE. 95 land at a saw-mill erected by the debtor for the purpose, with a stipulation of the owner of the land to buy the mill or sell the land, at his election, after the timber is cut and manufactured, has no attachable interest in the land.* Nor does one who oc- cupies land under a contract of purchase with the right to cut and sell wood growing thereon, upon condition of accounting to the owners, for the receipts after reimbursing his expenses, have an attachable interest in the wood.^ In other states where equitable interests are attachable gen- erally, or where, like in California, the word "land " embraces all titles, legal and equitable, perfect or imperfect, including such rights as lien in contract, those executory as well as those executed,^ the interest of a contract-purchaser is attachable. And where such contract rights are attachable, an attachment of "all the right, title, and interest " of the debtor, " in and to the said real estate described in " a contract for the convey- ance of real estate, will create a valid lien upon all the debtor's right by virtue of such contract.* And where the interest of a debtor in a bond or contract for a conveyance of real estate on certain conditions is attached, a subsequent agreement to extend the time of performance of the conditions will follow the contract, and the attaching creditor will have the benefit thereof.® By virtue of the code of New York " the real prop- erty which may be levied upon by virtue of a warrant of at- tachment includes any interest in real property either vested or not vested, which is capable of being alienated by the defend- ant, " and therefore the interest of a defendant in possession of the land under a contract of purchase, on which he has made partial payments, and under which he is entitled to a conveyance upon the completion of his payments, may be levied upon by virtue of an attachment.* 1. Dodge V. Beattie, 61 N. H. 101. 5. Whitmore v. Woodward, 28 Me. 2. Provis V. Cheves, 9 R. I. 53. 392. 3. Fish V. Fowlie, 58 Cal. 373. 6. Higgins v. McConnell, 130 N. Y. 4. Whitmore v. Woodward, 28 Me. 482, 29 N. E. Rep. 978. 392. CHAPTER IV. WHAT PROPERTY MAY NOT BE ATTACHED. §64. 65. 66. 67. 68. 69. Exempt property — (a) Gener- ally. (b) Provisions for the family. (c) Wearing apparel. (d) Household furniture. (e) Animals used in one's busi- ness or in support of the family. (f) Tools used by mechanics, and ' ' implements of hus- bandry." §70. (g) Animals, tools, etc., used in public service. 71. (h) Homestead and money re- ceived therefrom. 72. Who entitled to exemption — (a) The head of a family. 73. (b) Not a non-resident. 74. How exemption obtained. 75. Waiver of claim of exemption. § 64. Exempt property — (a) Generally.' — It has been here- inbefore said that whatever property is liable on execution is liable on attachment.^ And likewise it may be here affirmed that whatever is exempt from execution is exempt from attach- ment, for no property can be attached which can not be sold on execution after judgment is obtained in the attachment suit,' because an attachment lien can only be enforced by sale under execution of the property which has been attached.* The exemption of property from attachment and execution is purely of statutory enactment and has no further extent and force than the statute gives it, by strict construction.* The exemption laws are intended to provide for the comfort of the debtor and 1. The provision of Hlinois Revised Statutes that "no property" shall be exempt from sale for a liability in- curred for the purchase or improve- ment thereon, relates only to real es- tate. Wells ?7. Lilly, 86 111*. 317 ; How- ard V. Lakin, 88 111. 36. As to exemption of money due for labor, i. e., "wages," see "Garnish- ment," post, Vol. II. 2. See ante, § 28. 3. Davis V. Garett, 3 Iredell (N. C.) 459 ; Parks v.Cushman, 9 Vt.320 ; Com- missioners V. Riley, 75 N. C 144; Nashville Bank v. Ragsdale, Peck (Tenn.) 296; Handy v. Dobbin, 12 Johns. (N. Y.) 220; Emerson v. Ba- con, 58 Mich. 526. 4. Myers v. Mott, 29 Cal. 359. 5. State V. Laies, 46 Mo. 108. (96) § 65 PROVISIONS FOR THE FAMILY. 97 his family.* But the supreme court of Alabama has perti- nently said that "it may be gravely doubted whether the law of exemption in this state can be invoked in favor of abscond- ing debtors and debtors about to remove out of the state. "^ And Pennsylvania holds that the exemption law does not op- erate in favor of defendants who have rendered themselves subject to be sued by foreign attachment.^ And that if the de- fendant has fraudulently concealed or disposed of his property he can not invoke aid of the exemption law.* But this ques- tion seems not to have been adjudicated in most of the states.* Where the exemption allowed is of specific things in numero , the number of articles exempt is not double when the owner- ship is of an undivided half of each. Therefore, one owning an undivided half of a yoke of oxen and of a yoke of steers, and of more than twenty sheep, is entitled to an exemption in either the oxen or the steers, and the statutory number of sheep, and not in both oxen and steers and in twice the statu- tory number of sheep. ^ It will be well for the practitioner to remember, in this con- nection, that where an attachment has been made upon ex- empt property and the property has been thereafter released, the levy will nevertheless bring the defendant before the court.' § 65. (b) Provisions for the family.— The statutes of most states make specific exemption of certain articles of food, or animals for food.' But the articles for food must be in them- selves suitable and necessary to be used for that purpose. It 1. Knabb v. Drake, 23 Pa. St. 489. claim her exemption. Lindsey v. Dix- Who is entitled to exemption, and on, 52 Mo. App. 291. how exemption is secured, will appear 4. McCarthy's Appeal, 68 Pa.St.217. in §§ 72-75. 5. Emerson v. Smith, 51 Pa. St. 90, 2. McBrayer v. Dillard, 49 Ala. 174. post, § 73. Allowed in Bonnell v. Dunn, 29 N. J. 6. White v. Capron, 52 Vt. 634. L. 435, post, §§ 72 and 73. 7. Hadley v. Bryars, 58 Ala.a39. 3. Yelverton v. Burton, 26 Pa. St. 8. As to animals, see pos«, §68. But- 351^ ter made from the milk of a debtor's In Missouri the wife of a non-resi- only cow is not liable to attachment dent defendant may intervene and and execution. Leavitt v. Metcalf, 2 Vt. 342. Att. 7 98 WHAT PROPERTY MAY NOT BE ATTACHED. §§ 66, 67 is not sufficient that the articles sought to be exempted may, by sale or exchange, indirectly contribute to the sustenance of the debtor or his family.' And a statute exempting a certain quantity of wheat does not exempt a barrel of flour purchased by the debtor, manufactured from grain of which he had never been the owner. ^ And a statute exempting one hog and the pork of the same, when slaughtered, from attachment and exe- cution, does not protect from such process both a hog and the pork of a slaughtered hog.' ^66. (c) Wearing apparel. — It is a universal rule that the necessary apparel is exempt from execution and attachment, and it has been said that the statute exempting the necessary wearing apparel exempts suitable apparel for labor, with an ex- tra suit for days of religious worship, and an overcoat at all seasons of the year.* §67. (d) Household furniture. — Certain household furni- ture is generally exempted by statute from levy on execution or attachment. But in order that such furniture may be ex- empted it is not enough that the article is suitable for house- hold furniture; it must be made to appear that it was actually used as such, or is intended to be so used. The court will not assume that they were exempt.^ Nor is it sufficient to prove that it is the kind the law exempts; there must be proof that it is exempt.^ Under a statute exempting "all beds, bedsteads, and bedding kept and used for the debtor and his family," the exemption of bedsteads and bedding actually used by the debt- or's family is not affected by the fact that there are other beds of the debtor not levied upon, unless it is shown affirmatively that the whole number is greater than is necessary or conveni- ent for the use or comfort of the family.' In Connecticut a 1. Blake v. Baker, 41 Me. 78, But a traveling trunk, a cabinet box A swine, though killed and dressed, and a breast pin have been held not is exempt. Gibson v. Jenney, 15 to be exempt. Towns v. Pratt, 33 N. Mass. 205. H. 345. 2. Tucker v. Lane, 23 Me. 537. 5. Bourne v. IMerritt, 22 Vt. 429. 3. Parker v. Tirrell, 19 N. H. 201. 6. RolHns v. Alhson, 59 Vt. 188. 4. Peverly v. Sayles, 10 N. H. 356. 7. Heath v. Keyes, 35 Wis. 668. § 67 HOUSEHOLD FURNITURE. 99 widow who supported herself and daughter by keeping a board- ing-house, and who owned a quantity of furniture suitable for a boarding-house, took a furnished house for a year in the city of New York, and went there to keep boarders, intending to return at the end of the year and resume her business as before. Her furniture was stored in the meantime in Connecticut, and while so stored was attached by a creditor. It was held ( 1 ) That the furniture, if otherwise exempt, did not become open to attachment by reason of its being stored and not in actual use. (2) That the furniture was not exempt as being neces- sary for the use of her boarders, nor on the ground that the boarders were a part of her family. (3) That the inquiry was as to what was necessary for the personal comfort of the family, as such; but that the term "family" in this case was not limited to the mother and daughter alone, but, as she was keeping boarders, might properly include a servant, and in any case would include a visitor or a dependent relative who was living in the family. (4) That in determining what was neces- sary household furniture, her occupation might properly be considered, and if the fact of her keeping boarders made it necessary for her to have more furniture for her personal use, as an additional bureau, or other like convenience, such addi- tional furniture would be exempt.^ Where the debtor's family consists of himself and wife and three young sons, two beds only may be exempted from attachment as necessary, but it will be otherwise if the children are of different sexes. ^ And a householder, who has neither wife nor child, is entitled to but one bed, bedding, etc., as exempted from attachment and not to another used by persons boarding with him.^ 1. Weed V. Dayton, 40 Conn. 293. the property was exempt from attach- Where the principal debtor who, as ment ; in an action against the prin- a hotel keeper, had owned and had cipal debtor, where the person in used in that business five carpets, five possession of these articles was sum- dozen knives and forks, seven large moned as trustee and sought to be fluid lamps, twenty small fluid lamps, made chargeable therefor. Clark v. two fluid cans, five pails, twelve turn- Averill, 31 Vt. 512. biers, eighteen goblets and a few other 2. Ghdden v. Smith, 15 Mass. 170. articles of household furniture,allowed 3. Brown v. Wait, 19 Pick. (Mass.) his successor in the hotel to use them 470. jn the same business, it was held, that 100 WHAT PROPERTY MAY NOT BE ATTACHED. § 68 A cooking stove is an article of household furniture, neces- sary for upholding life, within the meaning of the statute ex- empting such articles from attachment and execution.' An officer attaching household furniture within the class ex- empted from attachment is bound to leave with the debtor at least articles aggregating the value exempted by the statute.' And when articles of household furniture which are exempt from attachment are intermingled with other similar articles not so exempt in the house of the owners, this is not such a confusion of goods as will justify an officer in attaching all of them upon failure of the owner to claim any of the articles as exempt.* § 68. (e) Animals used in one's business, or in support of the family. — Most states make some provision by statute for . the exemption of "beasts of husbandry," and domestic ani-*^ mals which contribute to the support of the debtor or his fam- y^ ily ; and the provisions exempting such property from attach-^ ment are applicable to a foreign debtor temporarily resident in t^^ the state, unless he is especially exempted therefrom by stat- ^ ute.* And when such exemption is made, it is not a necessary .^ coincident, at the time of the levy, that the animal be in actual ^ use. It is sufficient if the owner keep it with the honest in- tention and purpose of using it within a reasonable time/ ^ Therefore, under the statute exempting " two horses kept and used for team work," a horse kept with an honest intention of using it for team work within a reasonable time can not be at- tached.^ Statutes relating to exemptions are to be liberally ^.. construed, consequently a horse generally used "for team work " should beheld exempt, although he is not exclusively kept for that purpose.' A statute exempting a horse from at- 1. Crocker v. Spencer, 2 D. Chip. 2. Mannan v. Merritt, 11 Allen (Vt.) 68; Hart v. Hyde, 5 Vt. 328; (Mass.) 582. Woods V. Keyes, 14 Allen (Mass.) 3. Copp v. Williams, 135 Mass. 401. 236; Brown v. Wait, 19 Pick. (Mass.) 4. Everett v. Herrin, 46 Me. 357. 470.' 5. Rowell v. Powell, 53 Vt. 302. A time piece is a necessary article of 6. Steele v. Lyford, 59 Vt. 230, 8 household furniture. Leavitt v. Met- Atl. Rep. 736. calf 2 Vt. 342. 7. Webster v. Orne, 45 Vt. 40. § 68 ANIMALS USED IN ONe's BUSINESS. 101 tachment when required for actual use, does not mean that the horse must be so required at the moment of the attachment.^ On the question as to whether the debtor's horse is required for other *' actual use " than " teaming purposes," it may be shown that he used it to convey his children to school and to church.^ Evidence of the circumstances of the employment and the needs of the debtor and his family is admissible on the question whether a horse is exempt from attachment or not.^ Under a statute exempting from attachment "one or two horses not exceeding in value $100," a horse of greater value than that sum is not exempt.^ And if there are two horses, neither of which is of that value and the value of both exceed it, the debtor may elect which one shall be exempt.® A statute exempting ** beasts of the plow, not exceeding a yoke of - oxen or a horse when required for farming or teaming pur- T* poses or other actual use," does not exempt a wagon or har- \^ ness.® And one who claims and obtains his horse as exempt i-Jrom attachment under such statute can not afterwards, if his \ title to the horse have proved invalid, contend that oxen at- ^ tached at the same time were exempt.' A debtor who refuses > to elect whether he will retain a horse or a pair of oxen as the >^ exempt team, when requested so to do, can not complain be- _ cause the oxen were attached and sold.* Under the statute ex- empting " one pair of working cattle," a bull which is used 1. Jaquith v. Scott, 63 N. H. 5; s. and exempt from attachment;" there c. 56 Am. Rep, 476. was no change of possession, and it 2. George v. Fellows, 59 N. H. 206. was held that A had properly exer- 3. George v. Fellows, 60 N. H. 398. cised his right of selection, that no y^ Where mules which have been con- change of possession was necessary :X veyed to one in trust for a feme covert and that such horse was therefore not X. are kept upon the farm of her hus- liable to attachment. George v. Bas- ^ band, a single horse owned by the sett, 54 Vt. 217. ^ husband has been held to be not ex- 6. Somers v. Emerson, 58 N. H. 48. ^ empt from attachment. Simonds v. A butcher's only set of harness, Gulley, 7 Ala. 721. though used and needed by him in 4. Hughes V. Farrar, 45 Me. 72. his business, is not exempt from at- 5. Everett v. Herrin, 46 Me. 357. tachment under the Vermont statute. A, who owned two horses, only one Carty v. Drew, 46 Vt. 346. of which was exempt from attach- 7. Barney v. Keniston, 58 N. II. ment, gave a bill of sale of one horse, 168. describing it as "kept for team work 8. Davis v. Webster, 59 N. H. 471. 102 WHAT PROPERTY MAY NOT BE ATTACHED. § 68 for work is exempt, although the owner have no other cattle.^ And where a debtor owns neither oxen nor horses, a colt which does not exceed the statutory value is exempt from attach- ment.^ In some states the debtor's only cow is exempt from execu- tion and attachment.' And under such statutes a two-year- old heifer, not with calf, is exempt from attachment and execution, if the debtor have no other cow.* But under such statute, when cows have been attached, a debtor will not be heard to complain that the officer attached a particular cow unless he shows that he elected to retain one.^ And if he have two cows and one of them be taken, he can not sue the officer in trespass on the ground that it was his only cow; sup- posing that the cow in his possession belongs to the estate of his deceased wife, he can not, on failing to sustain the exemp- tion claimed, change his ground and claim the right to elect which of the cows shall be treated as exempt. His right of election will be deemed to have been waived because he did not attempt to exercise it at the time of the attachment.® It seems that where an animal is claimed to be exempt from attachment such claim can not be sustained by proof that it is of the kind the statute exempts, but that it must be shown that it is exempt.' When the necessary quantity of feed to keep the exempt ani- mals is also exempt, it seems that the full amount exempted 1. Bowzey v. Newbegin, 48 Me. Freeman v. Carpenter, 10 Vt. 433; 410. Hill V. Loomis, 6 X. H. 263. 2. Kennedy v. Bradbury, 55 Me. And the butter, made from the 107. milk of a debtor's only cow, is not A declaration made by a debtor to liable to attachment and execution, the creditor prior to the attachment Leavitt v. Metcalf, 2 Vt. 342. that he had ?5,000 of property, two 4. Freeman v. Carpenter, 10 Vt. yoke of oxen that could be attached, 433; Johnson v. Babcock, 8 Allen and that he should pay him soon, did (Mass.) 583. not estop him from claiming his right 5. Howard v. Farr, 18 N. H. 457. to "one yoke of oxen or steers, as he 6. Sumner v. Brown, 34 Vt. 194. may select." Haskins v. Bennett, 41 Further as to "How Exemption Ob- Vt.698. tained" and "Waiver of Claim of 3. Haskill v. Andros, 4 Vt. 609; Exemption," see posf, §§ 74, 75. 7. Rollins V. Allison. 59 Vt. 188. § 69 TOOLS USED BY MECHANICS. 103 by statute may be claimed, although a part of the winter is already passed/ But a debtor is not entitled to hold hay for the use of sheep exempt from attachment, unless he has sheep at the time of the attachment.^ §69. (f) Tools used by mechanics, and ''implements of husbandry." — The statutes generally exempt the tools used by mechanics in the pursuit of their trade and the implements of husbandry used by husbandmen. The tools and implements exempt from seizure, however, are only such as are necessary for the mechanic to carry on his trade in the usual manner, and not all that are merely convenient for the exercise of the trade by which the debtor gains a living.* It is said that ** working tools necessary for his usual occupation " should be construed to include not only all tools which are indispensably necessary to the mechanic, or even such as are in use by indi- viduals of the same craft, but also such as the mechanic has adopted to ease and diminish his labor, and not only his work- ing tools, so called in the dictionary and by learned men, but such as are so called by the craft, such as he uses and has set apart for the advantageous prosecution of his business.* And where one is engaged in two branches of business he may se- lect as exempt from attachment the tools he uses in both trades, provided the value of the whole number selected does not ex- ceed the value named by the statute as the limit of a me- chanic's exemption.® 1. Kennedy v. Philbrick, 38 Me. to be exempt. Barker v. Willis, 123 135. Mass. 194. 2. Foss V. Stewart, 14 Me. 312. The tools used by an apprentice or 3. PrathertJ. Bobo, 15La. Ann. 524; journeyman in jeweler's business Howard v. Williams, 2 Pick. (Mass.) have been held to be exempt, tliough 80. the master (the debtor) worked prin- 4. Healy v. Bateman, 2 K. I. 454. cipally on watches, his principal 5. Barker v. Willis, 123 Mass. 194. business being that of a jeweler. In this case the debtor was a tan- Howard v. Williams, 2 Pick. (Mass.) ner and had tanners' tools. He was 80. also a musician and had a cornet. And a sewing machine of less value He worked at the tanner's trade and than that limited by the statute owned played the cornet at balls for pay. by one engaged in the manufacture of Both his cornet and tools were held ready-made clothing, and used by a 104 WHAT PROPERTY MAY NOT BE ATTACHED. § 69 It has been well said that to be entitled to the statutory ex- emption of implements of the debtor's trade and the tools used in carrying on his business, the debtor must be a mechanic, in contradistinction to a manufacturer ; that the implements must be tools, in contradistinction to machinery ; and that the trade must consist in the production of articles for the supply of the neighborhood or particular customers, in contradistinc- tion to such as are intended for sale in the market. Therefore, where A, a spectacle-maker, and B, a blacksmith, who had formed a partnership and been engaged in the business of manufacturing German silver spectacles, employing in that business six workmen besides themselves, were commencing to manufacture cast-iron shears, when C, a creditor of the firm, attached all the implements used in making German silver spectacles and cast-iron shears, except the tools for one person, it was held that the articles attached were not implements of the debtor's trade within the meaning of the statute, and con- sequently were not exempt from C's attachment.* But in Mas- sachusetts it was held that machines of simple construction, moved by the hand or foot, and used in the manufacture of boots, are exempt from attachment, even though the owner employed a number of men under him in carrying on his busi- ness, by whom the machines are generally used.^ The following examples may aid in determining what is and what is not a tool within the meaning of the statutes of ex- emptions: A barber's chair and foot-rest, used by a barber in his business, are exempt, as ''tools." ^ Instruments used by a woman in making cheese, such as presses, vats, and knives, are exempt as "tools and instruments."* A grindstone kept and used on a farm in the ordinary manner is exempt, under a statute exempting such tools as are necessary for upholding person employed by him has been 1. At wood v. De Forest, 19 Conn, said to be exempt from attachment, 513 ; Knox v. Chadbourne, 28 Me. 160. as necessary, if without it such busi- 2. Daniels v. Hay ward, 5 Allen ness can not successfully be carried (Mass.) 43. on, although the owner does not know 3. Allen v. Thompson, 45 Vt. 472. how to use it himself. Bowling v. 4. Fish v. Street, 27 Kan. 270. Clark, 3 Allen (Mass.) 570; Rayner V. AVhicher, 6 Allen (Mass.) 292. § 69 TOOLS USED BY MECHANICS. 105 life.* A sled is also a "tool," but a wagon used for conveni- ence or pleasure is not exempt;^ neither is a daguerreotype apparatus which the owner has ceased to use for taking like- nesses and is using only to teach the art to another, a "tool of his occupation;"' nor is a machine for shaving or splitting leather, operated either by hand, steam or water, costing $250, and weighing from six to nine hundred pounds, worked by turning a crank, and requiring two men to work it by hand, and when in use fastened to the floor by cleats, exempt from attachment and execution as a tool necessary for upholding life;* nor is a portable machine, called a " Billy and Jenny," used for spinning and manufacturing cloth, exempt;' neither are potash kettles set in arches in the usual way for use ; ® nor a horse and saddle owned by a cavalryman. ' A violin and bow are exempt to a debtor whose sole business is that of a musi- cian in a military and quadrille band, and who obtains most of his support by playing upon his violin, if the value is less than the sum exempt/ Where a mower and its reaper attach- ment are levied upon and the whole exceeds what the statute allows the debtor to claim, he may select the mower alone as exempt, the two being separable and the mower a complete machine without the attachment.^ So, too, under a statute exempting the tools, implements and fixtures necessary for carrying on the business of a debtor, no"^ exceeding $100 in value, a clock, stove, screen, pitcher, and table cover, used by a milliner, should be exempted, if they do not exceed that value and the jury find them to have been necessary, and if used in her business." A lawyer's ordinary office furniture, including his table, necessary to carry on his business, is com- prehended within the statutory clause, "the proper tools, in- struments, or books of the debtor."" Where it is shown that 1. White V. Capron, 52 Vt. 634. 8. Goddara v. Chaffee, 2 Allen 2. Parshley v. Green, 58 N. H. 271. (Mass.) 395. 3. Norris v. Hoitt, 18 N. H. 196. 9. Ramsey v. Barnabee, 88 111. 135. 4. Henry v. Vheldon, 35 Vt. 427. 10. Woods v. Keyes, 14 Allen (Mass.) 5. Kilburn v. Deming, 2 Vt. 404. 236. 6. Wetherby v. Foster, 5 Vt. 136. 11. Abraham v. Davenport, 73 Iowa 7. Fry v. Canfield, 4 Vt. 9. Ill, 34 N. W. Rep. 767. 106 WHAT PROPERTY MAY NOT BE ATTACHED. § 69 a party depends entirely ui^on the trade of a printer and editor for means of support, his printing press and materials neces- sary for the exercise of a printer's trade are exempt.* Under a statute which exempts '' one cart or truck-wagon, "a peddler's wagon, designed to be used in trade from place to place, with the body hung upon three elliptic steel springs, with drawer behind and doors at the sides, and a railing around the top, and dasher in front, can not be attached.^ Whether a physi- cian's wagon and harness are ''tools of his occupation," exempt from attachment, is a mixed question of law and fact. If reasonably necessary, they are exempt.^ A wagon used for convenience or pleasure is not exempt, but a sled used for draw- ing timber to market is free from attachment as a tool of one's occupation.* Wheels of a cart, and the gear used in moving it with oxen, are not "tools" within the statute,^ Nor is a wagon with patent couplings attached, used by the owner in carrying on his business of selling patent couplings ; ® neither is the stock of goods, scales and measures, horse, wagon, and harness, of a shopkeeper in tlie country.' But a shovel, pick- ax, dungfork, and hoe, used by a debtor in tilling his land, are exempt from attachment, although tilling land is not his principal business.* A temporary suspension of the exercise of one's trade, when, as a matter of fact he intends to resume it, will not render a mechanic's tools liable to attachment.^ Where a debtor was engaged in farming the year preceding the attachment, which was levied on March 16, when his lease had exj^ired on the first of March and no other farm having yet been leased, the 1. Prather v. Bobo, 15 La. Ann. 7. Wilson v. Elliot, 7 Gray (Mass.) 624. Compare Buckingham t'. Billings, 69. 13 Mdss. 82; Danforth v. Woodward, A grocer's stock in trade is not ex- 10 Pick. (Mass.) 423. empt from attachment under Stat. 2. Smith V. Chase, 71 Me. 164. 1855, Ch. 264; Eeed v. Xeale, 10 Gray 3. Richards v. Hubbard, 59 N. H. (Mass.) 242. 158; s. c. 47 Am. Rep. 188. 8. Piei-ce^ v. Gray, 7 Gray (Mass.) 4. Parshley v. Green, 58 N. H. 271. 67. 5. Daily v. May, 5 IMass. 313. 9. Caswell v. Keith, 12 Gray 6. Gibson v. Gibbs,9Gray (Mass.) (Mass.) 351. See also as to "Waiver," 62. post, § 75, § 70 ANIMALS, TOOLS, ETC. 107 fact that he did not own a farm, or have a lease of one, and was not at the time of the levy engaged in the farming, was held not to be conclusive as to whether he was or was not a farmer, when he had testified that he was a man of a family and had been a farmer all his life.^ When the statute exempts implements of one's trade or busi- ness and the articles belonging to the debtor are plainly dis- tinguishable as such, it is the duty of the officer to avoid the seizure of such articles, although the debtor make no demand for them. The seizure of such exempt articles will render the attaching officer liable for damages.' Although it has been said that where the statute makes no specific enumeration, but exempts merely the *' implements or stock in trading, * * * nsed or kept for the purpose of carrying on his trade or busi- ness," the officer is not charged with knowledge of what is ex- empt thereunder, and that unless the debtor make his selection he will be deemed to have waived his right thereto and the of- ficer may seize the whole without incurring any liability there- for." §70. (g) Animals, tools, etc., used in public service.— Ani- mals, vehicles, tools and other personal property used in the service of the government are usually exempt from execution and attachment. As for example, a mail coach and horses while carrying the mail can not be seized, as it would be an obstruction of the mail within the meaning of the United States statutes.* But if the levy is made without knowledge of such use the officer may not incur any liability therefor. The ex- emption of articles required by the government is only appli- cable when such articles are in use, as where under a statute exempting *' such military arms and accoutrements" as the debtor is required by law to furnish, it was held that the ex- 1. Hickman v. Cruise, 72 Iowa 528, 3. Behymer v. Cook 5 Colo 395. 34 N. W. Rep. 316. "How Exemption Obtoined and 2.Wood«.Keyes, 14 Allen (Mass.) "Waiver of Claim of Exemption, 236. See also as to "I.evy, " Post, § 213, see post, §§ 74-75 and as to "Liability of Executive 4. Harmon v. Moore, 59 Me. 4-8. Officer," post. 108 WHAT PROPERTY MAY NOT BE ATTACHED. § 71 emption was of a temporary character, continuing only so long as the debtor is bound by law to furnish them, and when the obligation ceases the exemption in that particular case ceases.* § 71. (h) Homestead, and money received therefrom/ — Most states provide for a " homestead " exemption of land within a certain valuation. This land is exempted to be used for a residing place for the debtor and his family. When there is such homestead exemption, the residence must be or must have been on the land claimed as such. Therefore, a levy on the debtor's land previous to his making of it a home will ef- fect a lien, even though enforced by a sale made afterward. The exemption does not relate back.^ But the fact that two parcels of land are a distance apart, will not prevent them from being protected from legal process, if each is used for homestead purposes. But when the homestead has been fixed upon one piece, there must be such use of the other in order to invest it with the homestead character as would be required to make an original designation of a homestead. Therefore, where a debtor resided on a prairie farm in one county, and had just purchased some woodland in another county, intend- ing to use it in connection with the prairie place, and the woodland was attached before he did anything upon it, there could be no homestead exemption claimed of it.* The debtor, however, can not be deprived of his homestead exemption. And where the homestead has been changed into money and the money is kept as a separate homestead fund, without being mixed with other money and without intent be- ing shown to apply it to other purposes, it can not be attached.* 1. Owen V. Gray, 19 Vt. 543. homestead has no apphcation in at- 2. The statute in Illinois providing tachment cases. Daniels v. Morris, that no property shall be exempt 54 Iowa 369. from sale for debt or liability incurred 3. Kelly v. Dill, 23 Minn. 435. for the purchase or improvement re- 4. Brooks v. Chatham, 57 Tex. 31. lates to real estate alone, and does 5. Keyes v. Rines, 37 Vt. 260. not embrace personal property. Wells The same rule applies when the V. Lilly, 86 111. 317 ; Howard v. Lakin, debtor comes from another state 88 111. 36. whose laws protect the homestead to In Iowa, the law exempting a the same extent as our own. And §71 HOMESTEAD. 109 And such fund is, even when deposited in a bank, exempt.^ Money paid for right of way over the homestead by a railway is exempt, notwithstanding the fact that the character of the homestead as such is not destroyed by the easement.' But a homestead does not extend to new land exchanged for the old and not paid for, even though the debtor depended upon the money realized from the old to pay for the new, when the debtor claims homestead rights in the old.' Likewise insurance money received because of the destruction of exempt property is exempt from attachment for a reasonable time.* A judgment obtained for damage done to the home is exempt from attach- ment.^ The fund recovered for destruction or damage to ex- empt property is exempt till after the debtor has had time to invest it in exempt property.^ It has been reasonably said that lath, shingles and lumber obtained by a debtor for the purpose of repairing the dwelling- house occupied by him as a homestead, and actually deposited upon land included in the homestead are exempt from seizure on attachment.' The proceeds received from a voluntary sale and relinquish- ment of the homestead are, by the relinquishment, freed from their homestead character and are liable to attachment.' the same rule applies where the wife horse, has no exemption therein be- holds the fund. Keyes v. Eines, 37 cause the horse is exempt. Johnson Yt 260 '"• E^^de, 58 Miss. 664. 1. Kirby V. Giddings, 75 Tex. 679. And in Vermont debts due to a 2. Kaiser v. Seaton, 62 Iowa 463. debtor which accrued from the sale ot 3 Whittenberg v. Lloyd, 49 Tex. exempt property may be attached and ^33 holden bv trustee process. Scott v. 4. Cooney v. Cooney, 65 Barb. 524. Brigham,' 27 Vt. 561. See also in 5. Mudge V. Lanning, 68 Iowa 641 ; Pennsylvania, Knabb v. Drake, .3 Fa. Kaiser i;. Seaton, 62 Iowa 463; Steb- St. 489. , ,j . t * bins t;. Peeler, 29 Vt. 289. Personal property held m heu of 6. Tillotson V. Walcott, 48 N. Y. homestead is exempt only from sale jgg on execution and not from attachment The rule exempting the money re- under the Nebraska code, §§521-523, ceived for exempt property is not uni- M ax well, J., dissentmg. State v. versal, however,because in Mississippi Sandford, 12 Neb 4.o. ^ a plaintiff in replevin, who has recov- 7. Krueger_ .. P^^rce, o7 T. is^ -69 , ered a judgment for a horse, or his contra, Carkm v. Babbitt, 58 N. H. value, and also for damages for the 579. wrongful taking and detention of the 8. Mann v. Kelsey, 71 Tex. 609. 110 WHAT PROPERTY MAY NOT BE ATTACHED. § 72 § 72 . Who entitled to exemption — ( a ) The head of a family.* — The proper person to claim exemption, and in many cases the only person who is entitled to certain exemptions, is the head of the family. And where it is necessary that the claim- ant be such, and the property which is levied on be claimed as exempt is not made so specifically, the claim of exemption from attachment will be defective unless it shows that the debtor is the head of the family residing with the same.^ But as already shown,^ if the articles are specifically enumerated in the statute exempting them, the officer is charged with the knowledge of their exempt character and must not at- tach them, although no claim be made by the debtor.* If the husband is temporarily absent, the wife may claim the ex- emption for him.® Tlie family of even an absconding debtor, it has been said, is entitled to exemptions for their benefit.^ A married woman who has been abandoned by her husband, but who is living with and supporting her child, is the "head of the family.'" And a deserted wife without any children is (in Illinois) a ''family" within the meaning of the exemption laws.* But an itinerant dancing master who has no wife, but who has a minor son with whom he does not reside, and who owns a farm, which is leased to a tenant who takes care of his household furniture, etc., is not to be considered a head of a fam- ily within the statute exempting personal property from seizure.' The term "householder" is, by some statutes, used as synony- mous to "head of a family" in the other statutes. A "house- 1. There is no exemption, in Illi- Alabama Conference v. Vaughan, 54 nois, as against a demand for the Ala. 443. wages of laborers or servants ; but a 3. See ante, § 69. traveling salesman and book-keeper 4. McMastersv. Alsop, sj^pra,* Wood does not come within either of these v. Kej^es, 14 Allen (Mass.) 236. classes. Epps v. Epps, 17 111. App. 5. McCarty's Appeal, 68 Pa. St. 217; 196. Astley v. Capron 89 Ind. 167. The wife is the only one who, in 6. Bonnel v. Dunn, 29 N. J.L. 435; Missouri, can claim the exemption of Lindsey v. Dixon, 52 Mo. App. 291 ; the rents, etc., of such married worn- but see McBrayer v. Dillard, 49 Ala. an's real estate from attachment. Ab- 174, ante, § 64. ernathy v. Whitehead, 69 Mo. 28. 7. Nash v. Norment, 5 Mo. App. 545. 2. McMasters v. Alsop, 85 111. 157; 8. Berry v. Hanks, 28 111. App. 51. 9. Searcy v. Short, 1 Lea (Tenn.)749. §73 NOT A NON-RESIDENT. Ill holder" is defined to be one upon whom rests the duty of sup- porting the members of his family or household.' § 73. ( b ) Not a non-resident. — When it is necessary that the claimant be the head of a family it is also generally necessary that he reside with the same, within the jurisdiction of the court where the action is pending;^ for a statute, exempting certain property for the use of every family in the state, does not protect property of one having a family in another state.' But where a husband comes within the jurisdiction of the court intending to make that his place of residence, his property will be exempt from execution and attachment in the same manner as if he were residing with his family, although his family be still residing elsewhere.* And it seems that where one Avho is a non-resident has brought property into the state for a tem- porary purpose only, may claim that it is exempt when by the law of the state of his residence it is so exempt, when the at- tachment is brought by a creditor whose residence is in the 1. Thompson on Homestead Exemp- tions, §§ 45, 46 ; Smyth on Home- steads and Exemptions, § 532. The Indiana statute designates a " householder " as entitled to certain exemptions from attachment, and the court holds the statute to mean one who has members of his family de- pendent upon him for support and whom he supports. Lowry v. McAl- lister, 86 Ind. 543; Kelley v. McFad- den, 80 Ind. 536; Bunnell v. Hay, 73 Ind. 452. Within this provision is held to be a father living with three children at the house of his father-in- law, where he paid the price of their board and supplied them with cloth- ing and other necessaries (Lowry v. McFadden, 86 Ind. 543) ; a widow- er who employed a family to keep house for him and his adopted daugh- ter, although the daughter was absent at the time on a visit to her natural mother (Bunnell v. Hay et al., 73 Ind. 452) ; a widower continuing to occupy the same property the title to which has descended to the daughter, and while contributing to the support of the daughter's family which resides with him, though not dependent upon him for support — he paying the taxes on the property but no further con- sideration for its use (Bipus v. Deer, 106 Ind. 135) ; a widower without a child, remaining in the homestead and keeping a hired servant (Kelley V. McFadden, 80 Ind. 536) ; and an unmarried brother, while his sister lived with him, though she contribu- ted to the exi^enses of the household, he directing and controlling the af- fairs (Graham v. Crockett, 18 Ind. 119). 2. McMasters v. Alsop, 85 111. 157; Alabama Conference v. Vaughan, 54 Ala. 443. 3. Allen v. Manasse, 4 Ala. 554. 4. Chesney v. Francisco, 12 Neb. 626 ; State, ex rel. Kahoon, v. Krumpus, 13 Neb. 266. 112 WHAT PROPERTY MAY NOT BE ATTACHED. § 74 same state. In other words, the laws in one state will not per- mit a non-resident creditor to enforce a demand against a like non-resident debter when such demand could not be enforced in their home state. ^ The fact, however, that the affidavit for the attachment al- leges that the defendant is a non-resident and absconding debtor does not prevent the wife from claiming the exemptions allowed by the statute.^ AVhere a wife, whose husband is fleeing from justice, sold part of the household goods and took the rest with her to her father-in-law's house in another state, where she was joined by her husband and resided until he was arrested and taken back into the former state in the same year, when she also returned, it was held that she had not abandoned her domicile in the former state and that she was entitled to the exemption of the household goods as the wife of the abscond- ing husband.' § 74. How exemption obtained. — When the articles are spe- cifically exempted by the statute, the officer is charged with the knowledge of their 'exempt character, and must not levy upon them. But if they are not specifically mentioned in the statute, the debtor must make a claim of the articles which he considers to be exempt, or the officer may take the whole with- out incurring any liability therefor.* And he may select such articles as he deems most beneficial.^ The debtor should state to the attaching officer that certain articles are exempt, and that he desires them to be left free from attachment.® If the 1. Mumper W.Wilson, 72 Iowa 163, 33 empts, sets apart no portion thereof N. W. Rep. 449. for the use of his family before it is 2. Lindsey v. Dixon, 52 Mo. App. about to be attached, and makes no 291. claim to any portion of it when the In Missouri she may make her officer is about to attach the whole, he claim to exemptions by an interplea can not maintain an action against -duly filed. Lindsey v. Dixon, 52 Mo. the officer who takes the whole. Clapp App. 291. 1^- Thomas, 5 Allen (Mass.) 158; Nash 3. Griffith v. Bailey, 79 Mo. 472. v. Farrington, 4 Allen (Mass.) 157. 4. Behymer v. Cook, 5 Colo. 395. 5. Jordan v.Gower, 1 Baxter (Tenn.) When a certain quantity (as of pro- 103. vision) is exempt, and the debtor, who 6. Frick v. Mulholland, 48 Wis. 413. has a larger quantity than the law ex- In this case he stated that "it was § 74 HOW EXEMPTION OBTAINED. 113 officer will not set aside the property claimed as exempt at the time of the levy, the defendant may make his claim at the term of the court to which the attachment is returnable. He certainly can make his claim at the trial of the case, but it will be too late to make it after judgment is entered, unless it was impossible for him to make it before, in which case he may hold the property exempt from sale.' But in Alabama a debtor may go into court and claim a sum of money equal to the value of the exempt property, and the claim of such exemption does not come too late when it is made before the money thus col- lected is paid over to the plaintiff in the attachment suit.^ The rule that the officer is charged with the knowledge of the exempt character of the specific property mentioned in the statute is extended, in Kansas, to charging him with knowledge of the quantity and value of the exempt property not specific. For it is said that a merchant tailor is absolutely entitled to an ex- emption in his stock in trade to the amount allowed by stat- ute, and that this does not depend upon his selecting the same.' Where the debtor is entitled to an exemption of either of two pieces of property, he is bound to make his selection at the time of the levy if he has knowledge of it, or he will be deemed to have waived the right.* And a selection once made is final. A debtor who has claimed a horse as exempt is estopped from afterwards claiming the exemption of oxen at- tached at the same time, though the horse was not his prop- erty.* If the debtor fails to make a selection within a reason- his property and he wanted it to sup- erty as before. Close v. Sinclair, 38 port his family," and it was held that Ohio St. 530. these words constituted a sufficient 2. Webb v. Edwards, 46 Ala. 17. claim that the property was exempt. Replevin will always lie for exempt Frick V. Mulholland, 48 Wis. 413. property. Carkin v. Babbitt, 58 N. H. 1. Bittenger's Appeal, 76 Pa. St. 579; Harris^. Anstell,2 Baxt. (Tenn.) 105; Strouse's Executor v. Becker, 44 148. Pa. St. 206 ; State v. Manly, 15 Ind. 8 ; 3. Rice v. Nolan, 33 Kan. 28. Perkins v. Bragg, 29 Ind. 507. 4. Buzzell v. Hardy, 58 N. H. 331. It has been held in Ohio that the 5. Barney v. Keniston, 58 N. H. claim may as well be made after an 168. order for the sale of the attached prop- Att. 8 114 WHAT PROPERTY MAY NOT BE ATTACHED. § 75 able time, the officer may make a selection for him, and he will be bound thereby.^ When the officer has not released the attached property, and it is desired to bring the attention of the court to the exempt character of the property attached, the claim may, in a jus- tice's court, be made orally in the court in which the suit was brought.^ And it is the duty of the court to order the release of any or all of the property which may be exempt as soon as the fact is brought to its knowledge and a lawful demand is made by the owner/ It must be released by order of the court issuing the writ. It can not be released upon the mere affi- davit of the claimant.* § 75. Waiver of claim of exemption. — As a matter of pri- mary importance it should be remembered that the exemption of wages from attachment and execution can not be waived.® Failure to select what the debtor claims as exempt from ex- ecution or attachment is not, as a matter of law, a waiver.® But if the debtor, having had an opportunity to make a selec- tion, fails to do so, he will be deemed to have v^aived his right to hold the property as exempt from attachment.' Where no part of provision is set apart for the family at the time of the levy, and no claim is made therefor during the pendency 1. Savage v. Davis, 134 Mass. 401. v. Sutherland, 74 Me. 100. It should In an action for taking exempt be done by motion to dissolve the at- household goods it is for the plaintiff tachment. See post. to prove that enough was not left to 5. See posf, Vol. IT, "Garnishment." satisfy the statute. Gay v. South- 6. Copp v. Williams, 135 Mass. 401. worth, 113 Mass. 333. 7. Colson v. Wilson, 58 Me. 416; And in an action for the wrongful Smith v. Chadwick, 51 Me. 515 ; Buz- attachment of a cow, the plaintiff zell v. Hardy, 58 N. H. 331 ; Behymer must prove that it was his only cow, v. Cook, 5 Colo. 395. or, if be had two cows, that the officer Under the Colorado statute no attached the cow he selected. How- property is exempt against a claim ard i\ Farr, 18 N. H. 457. for the purchase - money thereof. 2. Bassett v. Inman, 7 Colo. 270. Behymer v. Cook, 5 Colo. 395. The 3. TJrquhart v. Smith, 5 Kan. 447. same principle is applied in Illinois, 4. State V. Sandford, 12 Neb. 425. but to real estate only. Wells v. Demurrer will not bring the objec- Lilly, 86 111. 317; Howard v. Lakin, tion to the notice of the court. Mitchell 88 111.36. § 75 WAIVER OF CLAIM OP EXEMPTION. 115 of the proceedings, there is no exemption.^ The debtor may waive his claim of exemption to the tools of his trade and his subsequent assent will make the attachment valid. ^ Being present at the sale and receiving the balance without objection, after the attaching creditor's demand is satisfied, is a waiver, and it is then too late to claim exemption, or to have an action against the officer for the seizure of property exempt by law. Such delay is unreasonable.' It is too late to claim an ex- emption even after judgment is rendered in the attachment suit.* The making of an assignment for the benefit of credit- ors by the defendant during the pendency of the attachment suit, in which he makes an exception of such property as he may lawfully hold exempt from execution, is not a waiver of his right to claim his exemption from the property attached.* But the fraudulent sale or fraudulent concealment of property for the purpose of hindering and delaying the creditor by pre- venting a sale of the property levied on is a bar to the debtor's right to claim an exemption.* Nor can such fraudulent ven- dor's right of exemption in the property sold be set up by the vendee in defense of the creditor's action for its recovery.' When the defendant gives a bond to the attaching officer and receives restitution of the property seized, it will be deemed to be a waiver of any right of exemption which he might have claimed.' In Alabama the provision of the statute requires that when a waiver of exemption is made, the officer serving the writ must indorse the fact of the waiver upon it and the fact that 1. Clapp V. Thomas, 5 Allen (Mass.) property as before. Close v. Sin- 158; Nash v. Farrington, 4 Allen clair, 38 Ohio St. 530. (Mass.) 157. 5. Close v. Sinclair, 38 Ohio St. 530. 2. Hewes v. Parkman, 20 Pick. 6. McCarthy's Appeal, 68 Pa. St. (Mass.) 90. 217; Emerson v. Smith, 51 Pa. St. 90. 3. Grady v. Bramlett, 59 Cal. 105; 7. Tilton v. Sanborn, 59 N. H. 290. Dow V. Cheney, 103 Mass. 181. That the debtor may claim his ex- 4. Perkins v. Bragg, 29 Ind. 507. emption in personal property fraud- But it has been held in Ohio that ulently conveyed, see Naumburg v. the claim may as well be made after Hyatt, 24 Fed. Rep. 898. an order for the sale of the attached 8. Wolf v. Cook, 40 Fed. Rep. 432. 116 WHAT PROPERTY MAY NOT BE ATTACHED. § 7t> the instrument on which the action is brought contains a waiver of exemption is not alone sufficient when the statute re- quires such indorsement on the writ.' 1. Fears v. Thompson, 82 Ala. 294, 2 So. Rep. 719. CHAPTER V. PARTIES TO THE ACTION. 1. Parties Plaintiff. 2. Parties Defendant, §76. Plaintiffs— (a) Individuals, the §81. (c) Partners. matter of residence. 82. (d) Tenants in common. 77. (b) Copartners, joint tenants, 83. (e) Heirs and representatives tenants in common et al. of deceased debtors. 78. (c) Corporations. 84. (f) Corporations. 79. Defendants— (a) Individuals, 85. (g) Persons other than debtors generally. —Interveners. 80. (b) Joint debtors. §76. Plaintiffs— (a) Individuals, the matter of residence. ^The only person who can sustain the action in any state is the person to whom the money is payable. The right to have process of attachment is an incident to the demand and not a personal privilege of the original creditor. It will pass by a general assignment, and the assignee may invoke the same in his own name.^ And although a garnishment may not be le- gally sued out by another than the creditor in the name of such other person, yet if no objection is made and the garnishee ap- pears and answers, and the alleged assignee takes judgment in his own name, such judgment will be held good ; because the assignment passes an equitable title to the assignee, which will support the judgment.' It follows as a rule recognized in every state that a creditor may sue out a process of attachment when- 1 Whitman v. Keith, 18 Ohio St. to which he was not a party was re- 134 ; Conklin v. Harris, 5 Ala. 213. quired to produce the assignment upon Under a code which requires that a which his claim is founded, ^^""ber- creditor, applying for a warrant for an land, etc., Co. v. Hoffman, etc., Co., - attachment, shall produce "the bond, Md. 495. account or other evidences" of the 2. McGill v. Bone, 21 Miss. (13 Sm. debt— a creditor suing upon a contract & ]M.) 592. (117) 118 TAKTIKS TO THE ACTION. § 76 ever he shows proper grounds therefor/ but several creditors, having separate claims, can not unite in one suit to attach the property of an absent debtor.^ Where one other than a cred- itor seeks to sue out an attachment he should procure the as- sent of the creditor ; but a subsequent ratification will render valid an attachment made without such assent.* The right to bring attachment is not solely an incident to the creditor in person, but may be maintained by his legal representative on a proper demand when proper grounds exist therefor.* The matter of residence of the plaintiff will need considera- tion before a remedy is sought by attachment. The Federal Constitution requires that each state shall extend to citizens of other states the same rights which it accords to its own citizens.* And aside from this it has been almost uni- versally held in the state courts of last resort in which the question has been raised, that it is not necessary that the at- tachment plaintiff shall be a resident of the state in which the action is brought.^ But in most cases in which the attention of the court has been drawn to the place in which the contract 1. As for grounds for attachment, E. Eep. 286; John Ray Clark Co. v. see post, Chapter VI. Toby Val. Supply Co., (Pa. Com. PI.) 2. Corruthers w. Sargent, 20 W. Va. 14 Pa. Co. Ct. E. 344; Woodley v. 351. Shirley, Minor, (Ala.) 14; Heming- 3. Bayley V. Bryant, 24 Pick. (Mass.) way v. Moore, 11 Ala. 645; Matter of 198; Baird v. Williams, 19 Pick. Brown, 21 Wend. (N. Y.) 316; Gra- (Mass.) 381. ham v. Bradbury, 7 Mo. 281; Mc- In the absence of fraud, an attach- Cready v. Kline, 6 Ired. (N. C.) L. ment levied in a proceeding insti- 245; Exp. Caldwell, 5 Cow. (N. Y.) tuted by the debtors themselves in 293 ; Bobbins v. Cooper, 6 Johns. (N. behalf of certain creditors, is valid Y.) Ch. 186; Barrow f. Burb ridge, 41 when ratified by such creditors. The Miss. 622 ; Merchant v. Preston, 1 debtor has the right to prefer a cred- Lea (Tenn.) 280 ; Beasely v. Parker, itor in this manner. First Nat. Bank 3 Tenn. Ch. 47; Hills v. Lazelle, 5 V. Greenwood, 79 Wis. 269, 45 N. W. Sneed (Tenn.) 363; Ward v. McKen- Rep. 810. zie, 33 Tex. 297; Staples v. Fairchild, 4. McCoy V. Swan, 2 Har. & J. 3 Comst. (N. Y.) 41 ; Posey v. Buck- (Md.) 344. ner, 3 Mo. 604; McClerkin v. Sutton, 5. Constitution of United States, 29 Ind. 407; Mitchell ?;. Snook, 72 111. Art. IV, § 2. 492. See, however, In re Marty, 3 6. Gibson v. Everett (S. C), 19 S. Barb. (N. Y.) 229. § 76 PLAINTIFFS. 119 on which the non-resident plaintiff seeks to maintain attach- ment was made, it has been held that it must be an indebted- ness within the state in which the suit is brought, or it will not support the action.^ In Maryland, where the statute provides especially that the action may be brought by a citizen of Maryland or some other of the United States, it has been held that a person may be a citizen of the United States, and not a citizen of any one state, and that an allegation that the plaintiff in attachment is a citi- zen of the United States is not sufficient ; but that the proceed- ings must show that he is a citizen of some state of the United States.^ The cause of action on which one non-resident may have at- tachment against another non-resident must, of necessity, be such cause of action as would support attachment at a suit of a resident/ A writ of attachment must be sued out in the name of all the parties in interest, and the parties in the declaration must conform to those mentioned in the affidavit and v/rit. If, how- ever, one of the parties plaintiff be omitted in the writ and 1. ^.r_par«eSchroeder,6Cow. (N.Y.) Y.) 297. Compare Furnham v. Wal- 603 ; Trabant v. Eummel,14 Oregon 17. ter, 13 How. (N. Y.) Pr. 348 ; Sheldon See post, § 17, "Contracts Made Out- v. Blauvelt, 29 S. C. 453, 7 S. E. Rep. sMe of the State." 593. in an action brought in Kansas by 2. Yerby v. Lackland, 6 Har. & J. one partner against his copartner to (Md.) 446; Shivers v. Wilson, 5 Har. recover one-half of the net profits of & J. (Md.) 130. See a\so post, § 17. the business before there has been a 3. Hazard v. Jordan, 12 Ala. 180. final accounting and a balance struck, Under the South Carolina statute, it was held that the plaintiff can not which allowed attachment only when attach the defendant's property on the "it shall appear that a cause of action ground of his non-residence unless exists against such defendant," it was the cause of action arose wholly within proper to dismiss an attachment where the limits of that state. Stone v. the plaintiff, as an administrator, sued Boone, 24 Kan. 337. a resident of another state for personal The attachment under the New York property held by him in the capacity code of procedure, unlike that of the of guardian of plaintiff's intestate in revised statutes, is for the sole bene- such other state because an admmis- fit of the attaching creditor; and a trator has no right to sue for personalty non-resident plaintiff is entitled to of the deceased outside of the state in proceed by it as well as a resident, which he was appointed. Stevenson Ready v. Stewart, 1 Code R. N. S. (N. v. Dunlap, 33 S. C. 350. 120 PARTIES TO THE ACTION. § 77 affidavit, the court will allow them to be so amended as to in- clude the proper parties.' § 77. (b) Copartners — Joint tenants, tenants in common, et al. — Attachment is not a remedy that is confined to any one class of individuals or to any particular form of action. Copartners, tenants in common and joint tenants can as well enforce their demands by means of an attachment as other individuals.'^ But it is not applicable where, from the nature of the business, it is impossible that the affi- ant can swear with certainty to the amount which may be found due on the final settlement between copartners.^ It is said in Kansas that where the plaintiff can show a promise, ex- press or implied, to pay the balance claimed, the cause of ac- tion does not arise out of the partnership business, but upon the promise made. However, he must show a balance struck, or quantity so agreed upon, that by simple computation from the balance sheet it can be ascertained.* And in Pennsylvania a balance struck between partners is a sufficient foundation for an attachment, without an express promise to pay it.® The ac- tion has been permitted in Georgia where a crop w^as raised on shares, and the landlord had taken possession of the whole. The tenant made out an account against the landlord, and en- forced payment of it by attachment.® When there is a fixed sum due from one to the other, it is no longer a partnership matter, and when the plaintiff presents a case on which he can bring an action of assumpsit he should be granted an attach- ment.' In California one partner can not have attachment against the other on any matter connected with the partner- ship affairs.* It is competent for one partner to institute an attachment 1. Shaw V. Brown, 42 Miss. 309. La. Ann. 154 ; Johnson v. Short, 2 La. 2. Humphreys v. Matthews, 11 IlL Ann. 277. 471. 4. Treadway v. Ryan, 3 Kan. 437. 3. Ackroyd v. Ackroyd, 11 Abb. (N. 5. Knerr v. Hoffman, 65 Pa. St. 126. Y.) Pr. 345, 20 How. (N. Y.) Pr. 93; 6. Holloway v. Brinklin,42 Ga. 226. Ketchum ■;;. Ketchum, 1 Abb. (N. Y.) 7. Humphreys v. Matthews, 11 IH. Pr. N, S. 157; Brinegar v. Griffin, 2 471. 8. Wheeler v. Farmer, 38 Cal. 203. § 78 PLAINTIFFS CORPORATIONS. 121 proceeding for the firm, tlie suit being for a partnership de- mand.* § 78. (c) Corporations. — Corporations being regarded as fictitious individuals, either a foreign corporation or a domes- tic corporation is entitled to sue under the attachment laws for the same cause of action and on the same grounds that would entitle a natural person to the writ.^ The United States has sued out an attachment in the courts of Louisiana notwithstanding the fact that the attached prop- erty was in the possession of a United States officer, and not- withstanding the fact that the defendant was a resident of the United States and could have been cited where he resided, and notwithstanding the fact that the imported goods had been sold before the payment of the duties for the collection of which the attachment was brought.^ An attachment may be issued in aid of a common law information prosecuted by the United States under the practice which has prevailed in the district court for the southern district of New York.* When the United States sues by attachment it need not give a bond." The state has the same right to sue out process of garnish- ment as any other creditor.* All municipal corporations coming wdthin the rule, a board of supervisors can sue in attachment in behalf of the county.' 1. McCluny v. Jackson, G Gratt. The right of Alabama banks to sue (Va.) 96. out an attachment in the county of And when the bond required is their location was a privilege, and did signed by both partners, each partner not abridge the powers they previously recognizes the proceedings, and the possessed to sue out an attachment in judgment or costs, should the plaint- the county where the defendant re- iffs be cast, would be- against the firm, sided. Pearson v. Gayle, 11 Ala. 278. McCluny v. Jackson, 6 Gratt. (Va.) 96. 3. United States v. Murdock, 18 La. 2. Union Bank v. United States Ann, 305. Bank, 4 Humph. (Tenn.) 369. 4. United States v. Stevenson, 1 A corporation created by the laws Abb. U. S. 495. of this state may have a foreign at- 5. Rev. Stat. D. C. 1001; United tachment against an absent or non- States v. Ottman, 3 McArthur (D. C.) resident debtor, and it will be author- 73. ized by the affidavit of the attorney 6. People v. Johnson, 14 111. 342. of the corporation. Trenton Bank 7. State «. Fortinberry, 54 Miss. 316. Co. V. Haverstick, 11 N. J. L. (6 Hals.) 17L 122 PARTIES TO THE ACTION. § 79 §79. Defendants — (a) Individuals, Generally. — As already shown/ the most general proposition tliat can be laid down regarding who may sue in attachment is that a creditor may sue ; likewise the most general proposition that can be stated regarding who may be sued is tliat no person can be a defend- ant in an action of attachment unless she be a debtor of the plaint- iff. Whether the indebtedness must be one that is due and owing at the time of the commencement of the action, or one that may thereafter accrue, depends wholly upon the control- ling statute. There can be no general rule stated in regard thereto.^ The non-residence of a defendant is a "ground" for attach- ment and will be considered under tlie subject of "Grounds for Attachment" against non-residents, together with the grounds for bringing attachment against resident debtors.' As to bringing suits of attachment against female debtors it may be said that in most states no distinction is made between males and females. A wife's separate estate has been sub- jected in a suit against herself and husband, both non-residents, for the satisfaction of a debt contracted by her before marriage.* And again an attachment was not sustained against a wife and husband sued as copartners, where the cause of action accrued during coverture.* The property of "soldiers in actual military service" is ex- empt from attachment,^ but such exemption does not extend to persons in the naval service.' The fact that the debtor is a lunatic constitutes no reason why his estate should not be proceeded against by attachment; nor is it necessary that he should appear and be defended by his next friend. * The effects or debts of a surety who has removed from the 1. Ante, §76. Abrams v. Pender, Busby (N. C.) L. 2. See ante, § 20. 260, 3. Post, § 86, et seq. 7. Abrahams v, Bartlet, 18 Iowa 513. 4. Crocker v. Clements, 23 Ala. 296. See "Residence," as contemplated by 5. Mayer v. Soyster, 30 Md. 402. the Attachment Laws, post, § 90. 6. Haynes v. Powell, 69 Tenn. 347 ; 8. Weber v. Weitling, 16 N, J. L. 441. § 80 DEFENDANTS JOINT DEBTORS. 123 country, leaving the principal within it, may be attached by the obligee/ The mere pendency of a petition in insolvency, for the dis- charge of an insolvent debtor, does not debar creditors from bringing attachment for the collection of their claims.^ The proceeding in the commencement of suits when the first name of the defendant is unknown is generally understood and needs not to be mentioned here, but where the first name of the defendant appears on the face of the proceedings to be fictitious, an attachment will be absolutely void and the officer executing it will be liable with the creditor, although the party intended, be the owner of the property seized.^ A public officer or agent can not be made a defendant in a foreign at- tachment.* And, in order to attach property held by a resi- dent officer under legal process, he must be proceeded against as a garnishee/ An agent can not be subject to foreign at- tachment for wages due from his principal to the defendant.® § 80. (b) Joint debtors.— The lines of demarkation have not been strictly drawn regarding the liabilities of individuals having a community of interest in the property sought to be attached; that is to say, the logical distinction between joint debtors, copartners and tenants in common has not been strictly observed. We have made an effort to classify them, but with only partial success, arranging them hereinafter in the order named. No confusion need, however, arise in the mind of the practitioner, because the same general principles that apply to one class in a given locality will apply to all. Process of attachment is only justifiable when it is apparent that the creditor is likely to lose his debt or be seriously de- layed through the fraud of the debtor; and in case of joint debtors, the facts justifying the attachments must generally apply to all, otherwise those to whom the facts do not apply 1. Loop V, Summers, 3 Rand. (Va.) 551 ; Stillman v. Isham, 11 Conn 124. 5JJ 5. Locke V. Butler, 19 Ohio State 2. Mowry v. White 21 Wis. 417. 587. See as to garnishment, post, VoL S.Patrick v. Solinger, 9 Daly (N. II. ,^^ ,r Y ) 149 6. Casey v. Davis, 100 Mass. 124. 4. Spalding V. Tmlay, 1 Root(Conn.') See as to garnishment, post, Vol. 11. 124 PARTIES TO THE ACTION. § 80 must be insolvent.* It has been said that a creditor of joint debtors may secure his claim by attaching the property of either or both/ but it is unusual for the courts to permit an attachment of the property of both joint debtors on a cause for attachment existing against only one.' The action will generally be permitted against the property of one of two joint contractors on the ground of his non-residence, although the other may be a resident of the state.* And the interest of a joint obligee may be attached for his individual debt in the hands of a joint obligor.* And where the action is joint and several, an attachment may be sustained against one alone, for good cause shown. ^ In Connecticut the interest of one joint tenant may be taken in attachment, and the whole property removed, notwithstanding the rights of the other joint tenant, under an agreement between the two, may be thereby im- paired.' But in Wisconsin the rule is stated to be, that where a cause exists for an attachment against the property of one de- fendant in an action, the writ may issue against his property, though no cause for issuing it exists as to his codefendant. And upon a writ of attachment against the property of one of the defendants in an action, any interest which he may have in any property with his codefendants or others, as joint owner, may be seized, and the sheriff under such seizure may take and retain possession of such property.* But where only one of several debtors declares a fraudulent intent, an attachment of the property of all would open the door of fraud as against the codebtor.' If one of several joint makers in South Caro- 1. Ogilvie V. Washburne, 4 Greene eral joint contractors. Cowdin ?;. Hur- (lowa) 548; Courrier v. Cleghorn, 3 ford, 4 Ohio 132. Greene (Iowa) 523; Pratt v. Pratt, 2 4. Searcy v. Pftitte County, 10 Mo. Chand (Wis.) 48; Dunn's Trustee v. 269; Matter of Griswold, 13 Barb. (N. McAlpin, 90 Ky. 78, 13 S. W. Rep. Y.) 412. 363 ; Francis v. Burnett, 84 Ky. 23. 6. Miller v. Richardson, 1 Mo. 310. 2. Marion v. Faxon, 20 Conn. 486; 6. Crittendon v. Hobbs, 9 Iowa 417. Greene v. Pyne, 1 Ala. 235; Austin v. 7. Remington v. Cady, 10 Conn. 44. Burgett, 10 Iowa 302. 8. Bank of Northwest v. Taylor, 16 3. See ante, § 48. Wis. 609. In Ohio a foreign attachment can 9. Pratt v. Pratt, 2 Chand (Wis.) not be sustained against one of sev- 48. ^ 81 DEFENDANTS PARTNERS. 125 lina is about to remove from the state a creditor may sue out a joint writ and serve the defendants not about to remove with a copy thereof after the cause of action has accrued; but such service upon the defendant not about to remove when the cause of action has not matured is premature and gives ground for a non-suit/ One who has bought personal property or undivided parts of chattels, with an option reserved to return or reconvey, or to pay for them within a term, is- liable in an action of foreign attachment, if service be had before the expiration of the term, and before his election, in the same manner he would be if he were bound to return the chattels in specie.' §81. (c) Partners.— When we seek to determine who shall be made parties defendant in an attachment suit where a co- partnership exists, four questions present themselves for con- sideration. (1) Is the debt a debt of the firm, or is it only the debt of an individual copartner? ( 2 ) If it is a debt of the firm, have the grounds for attachment been given by every member of the firm, or only by one of the copartners? (3) If it is a debt of the firm, and ground for attachment has not been given by every member of the firm, can attachment be sus- tained against the firm or only against the individual copart- ners giving cause for it? And (4) if it is the individual debt of one copartner, can an attachment be levied upon the copart- nership property? There is no doubt that if all the partners have rendered themselves liable, attachment will lie against all, f^^/.f "^ debt ' It is also true that if the debt is that of an individual copartner, he alone should be made a defendant m the suit ; but whether or not his interests in the assets of the firm can be seized to satisfy such indebtedness is a matter that wi^ receive consideration in its proper place when we come to treat o What Property or Interest may be Reached."* How far partnership ^. .osey . Dixon. 12 KiC. (S. C.) ^ (^^"^^^^^^-^^^ ^1: Smith V. Gaboon, 37 Me. 281. 4. Ante, § 28. 3. Curtis V. Hollingshead, 14 N. J. 126 PARTIES TO THE ACTION. § § 82, 83 property may be made submissive to a writ of attachment is- sued for a cause given by only one member of a firm on an in- debtedness of the firm will also be considered in that connec- tion, so far as relevant, and further under the head of ''Grounds for Attachment."^ § 82. (d) Tenants in common. — ^The undivided interest of a tenant in common may be levied upon and sold under an at- tachment; and this, without making the cotenants parties.* But the sheriff can sell only the undivided moiety or interest of the debtor, and the purchaser thereof becomes a tenant in common with the other cotenant. Such other cotenant is barred from maintaining trespass or trover therefor against the plaintiff in attachment because the tenancy in common has not been destroyed by the sale.® §83. (e) Heirs and representatives of deceased debtors. — A writ of foreign attachment can not generally issue at Suit of the creditor of a deceased debtor, against the heirs and repre- sentatives of such debtor.* But when an attachment writ is served, the plaintiff acquires a right in the property not to be defeated by the death of the debtor, if the action survives and the courts have power to continue it and the action is revived against his representative.® The pending attachment is a lien upon real property and when levied upon the real estate of a 1. Post, ^ 86, et seq. 300; Henderson v. Henderson, 5 2. Curry v. Hale, 15 W. Va. 867; Cranch C. Ct. (D. C.) 469. Buddington v. Stewart, 14 Conn. 404. Nor will an attachment lie to charge One-half only of the undivided the effects of a deceased foreign chattels can be attached in a suit debtor in the hands of a resident de- against one of two tenants in common, fendant; because there is no longer Ladd V. Hill, 4 Vt. 164; Melville v. any "absent debtor" within the Brown, 15 Mass. 82; Peck v. Fisher, meaning of the statute. Eedfern v. 7 Cush. (Mass.) 386. Rummey, 1 Cranch C. Ct. (D. C.) 3. Mersereau v. Norton, 15 Johns. 300. (N.Y.) 179; Sibley V. Fernie, 22 La. 5. Thatcher v. Bancroft, 15 Abb. Ann. 163. (N. Y.) Pr. 243 ; Rogers v. Burbridge, 4. Peacock v. Wildes, 8 N. .7. L. (3 5 Tex. Civ. App. 67, 24 S.W. Rep. 500; Hals.) 179; Patterson v. McLaughlin, Davis v. SL. ^ eigh, 19 111. 386; Dow 1 Cranch C. Ct. (D. C.) 352 ; Redfern r. Blake, 148 ill. 76, 35 N. E. Rep. 761, V. Rummey, 1 Cranch C. Ct. (D. C.) 46 111. App. .329. § 83 DEFENDANTS HEIRS ET AL. 127 debtor, who dies before judgment, his heirs take subject to it and must be made parties to the proceeding to subject it. They may then deny that the creditor has exhausted the personal estate of the deceased debtor.^ However the creditor of a de- ceased debtor in Virginia may sue out a foreign attachment against the heirs who reside out of the state and subject lands or its profits in the state which belong to the deceased debtor. But if the lands have been sold by the heirs under a decree of court and the proceeds paid to a commissioner, he should be made a party as commissioner and by indorsement of the pro- cess restrained from disposing of the proceeds.'' A creditor of one of the heirs of a decedent may attach his debtor's undivided interest in the real estate of decedent, and when such attach- ment is pending at the time of probate proceedings such at- taching creditor has a right to appeal from the decree of pro- bate." An action of attachment against an executor or an adminis- trator is generally inapplicable for the purpose of compelling the settlement of debts contracted by the decedent where the executor or administrator is not chargeable with any breach of duty other than a failure to pay the debt.* But an execu- tor or administrator who has become personally liable may be proceeded against by attachment.® And where the distributive share has been ascertained by a settlement of the administra- tion account, and such distributive share is still in the hands of the administrator or executor, it is liable to attachment, but the administrator may then require a refunding bond from the attaching creditor to meet outstanding claims.^ 1. Pierkins v. Norvell, 6 Humph. Taliferro v. Lane, 23 Ala. 369; Con- (Tenn ) 151; Snell v. Allen, 1 Swan way ??. Armington, 11 R. I. 116; M'- (Tenn ) 208 Comb v. Dunch, 2 Ball. 73 ; Pringle v. 2 Carrirur'ton v. Didier, 8 Gratt. Black, 2 Ball. 97; Weyman v. Mur- (Va.) 260. dock, Harp. (S. C.) 125; Williamson 3. Smith V. Bradstreet, 16 Pick. v. Beck, 1 Leg. Gaz. Rep. (Pa.) 200, (Mass.) 264; McClellan V. Solomon, 8 Phila. 269. 23 Fla. 437, 2 So. Rep. 825. 5. Matter of Galloway, 21 ^^ end. 4. Metcalf v. Clark, 41 Barb. (N. (N. Y.)32. ^ -o c y.) 45; Smith v. Riley, 32 Ga. 356; 6. McCreary v. Topper, 10 Pa. St. Kurds' Case, 9 Wend. (N. Y.) 465; 419; Fitchett t;.Dolbee, 3Harr.(Del.) 128 PARTIES TO THE ACTION. § 83 It has been in some instances, however, provided that an attachment may issue against an executor or an administrator who is actually removing, or about to remove, the property of the deceased out of the county.^ An attachment against a foreign executor or administrator of a deceased non-resident debtor is permissible, but it must ap- pear that he was a non-resident at the time of his death. And when such attachment is sued out against a non-resident debtor himself while living, the suit can not be revived by sci. fa. against his foreign executor or administrator, because it does not follow that he was a non-resident at the time of his death.'' An attachment in favor of a resident citizen against the execu; tor or administrator of a non-resident debtor must be levied on property which has not been reduced into possession by the foreign executor so as to be assets.* Where attachment proceedings have been improperly had against persons claiming only by right of representation, and the debtors were therein named as trustees, as executors, etc., these additions will be regarded, after lapse of time and acqui- escence, as mere words of description, in order to support the legality of the proceedings.* But, although executors can not be held liable in attachment for a demand against their dece- dent, they may be held in an attachment suit against " & ^ executors" for a debt which they have contracted while doing business under such name.* The service of an attach- 267 ; Brady v. Grant, 11 Pa. St. 361 ; Where such an attachment is im- Davis V. Davis, 2 Gush. (Mass.) 111. properly sued out, it must be abated A contingent remainder is not with- by plea, and can not be taken advan- in the Virginia code, allowing an at- tage of after judgment by default, tachment against " estates or debts " Loomis v. Allen, 7 Ala. 706. in certain instances. Young v. Young, The proper judgment in such a case 89 Va. 675, 17 S. E. Rep. 470. is the condemnation of the property 1. The affidavit in such case must levied on for the satisfaction of the allege that he is actually removing the debt, and, if replevied by the execu- property, or about to remove it. The tor, then against him personally, to fact that the executor is himself actu- be discharged by the delivery of the ally removing is no ground for attach- property. Loomis v. Allen, 7 Ala. 706. ment. Hallowayv. Ghiles,40Ga.346. 4. Jackson ■?;. Walsworth, IJohns. 2. Branch Bank v. McDonald, 22 (N. Y.) Gas. 372. Ala. 474. 5. Wickham v. Stern, 9 N. Y. S. 3. Loomis v. Allen, 7 Ala. 706. 803, 18 Civ. Proc. R. 63. §84 DEFENPANTS CORPORATIONS, 129 ment of a legacy upon one of two executors, before either has qualified, will create a lien upon the legacy.^ § 84. (f ) Corporations.' — ^The property of private corporations is generally subject to foreign attachment laws upon the same grounds and causes of action as that of individuals.^ A cor- poration is liable to be sued like a natural person in transitory actions in any state where service of process can be had.* The resident agent of a foreign corporation may generally be served with like effect as if the company existed in the state.* It must be remembered, however, that stockholders are distinct persons from the corporation, and legal proceedings against them can not reach it or its assets. Hence, if an attachment is sued out in a proceeding in which the stockholders are made parties but the corporation not, and is levied upon the effects of the corporation, no lien is acquired by virtue of the levy of said attachment.* 1. Sandidge v. Graves, 1 Patt. & H. (Va.) 101. 2. As to attachment of non-resident corporations, see "Grounds for At- tachment— Non-residence," post, § 90. 3. South CaroUna R. Co. v. McDon- ald, 5 Ga. 631 ; St. Louis Perpetual Ins. Co. V. Cohn, 9 Mo. 417 ; Cook v. State Nat. Bank of Boston, 50 Barb. (N. Y.) 339; Union Bank v. United States Bank, 4 Humph. (Tenn.) 369 ; Bushel V. Commonwealth Ins. Co., 15 Serg. & R. (Pa.) 173 ; Bank of U. S. V. Merchants' Bank of Baltimore, 1 Robb. (Va.) 573; Quinton v. Railroad Co., 1 Pa. Law Jour. Rep. 8; (but see Monongahela Navigation Co. ■;;. Ledlie, 1 Pa. Law Jour. Rep. 498) ; Reed v. Penrose, 2 Grant (Pa.) Cas. 472; Taylor v. Burlington, etc., R. R- Co., 5 Iowa 114 ; Burton v. Warren, 11 Iowa 166 ; Knox v. Protection Ins.Co., 9 Conn. 430; Barbour v. Paige Hotel Co., 2 Appealed Cases (D. C.) 174. And this may be true even though the attachment law be passed after the cause of action arose. Coosa Riv- Att. 9 er Steamboat Co. v. Barclay, 30Ala.l20. 4. N. 0. J. & G. N. R. R. Co. v. Wal- lace, 50 Miss. 244. 5. ]\Iorton v. INIutual Life Ins. Co., 105 Mass. 141. But the residence of the agent does not affect the non-resident character of the corporation. See below. The affidavit for attachment should state that the named defendant is a corporation. For, if it be assumed to be a copartnership, service as such by reading to the individuals named will not be good. Hinman v. Andrews Opera Co., 49 111. App. 135. 6. Lillard v. Porter, 2 Head. (Tenn.) 177. Assignees of an insolvent corpora- tion may maintain an attachment against non-resident subscribers of stock for sums due the corporation on such subscriptions, and no prior decree of a court of chancery nor assessment by the board of directors is necessary. Kohlor v. Agassiz, 33, Pac.Rep.741,99Cal. 9. 130 PARTIES TO THE ACTION. § 84 Much litigation has been had uj)on the question as to whether or not a corporation is a resident corporation in the state where it transacts business. On this point it is said that a corpora- tion has no existence out of the state where it is created, and that while it is everywhere recognized as such corporation and its powers to contract respected/ yet it only exercises its corpo- rate franchises by the comity of the state where it is doing business. It does not enter such state as a "citizen of another state," within the meaning of the constitution of the United States, according to such incoming citizen all the rights and privileges of citizens of such state. ^ And the statutes referring to foreign corporations do not refer to the residence of the in- corporators, but to the place where the charter is granted.^ A foreign corporation is one owing its corporate existence to the act of another state, and when it exists as one corporation, under the acts of two states, having but one capital stock and one set of officers, it is not suable as a foreign corporation in either of such states.* Where by the comity of a state a corporation is allowed to transact business and to sue and be sued, it necessarily pos- sesses authority to perform by its agents all acts necessary in conducting such suits. ^ And where such foreign corpo- ration is allowed to be sued by service on its agent, the statute permitting the same should be construed as authorizing a general judgment against the corporation upon the agent's acknowledgment of service of process in attachment.® The enactment of a statute which authorizes an attachment against a foreign corporation which is doing business within the state does not affect the previous right to sue out an attachment against a corporation not doing business in the state.' In 1. Bank of Augusta v. Earl, 13 R. I. 233. See Farnum v. Blackstone Peters (U. S.) 519; Gill v. Kentucky, Canal Co., 1 Sumner (U. S.) 47. etc., Co., 70 Ky. 635. 5. Planters' and M. Bank v. An- 2. Liverpool Ins. Co. v. Moss, 10 drews, 8 Porter (Ala.) 404. Wall. (U. S.) 566. 6. Atlantic, etc., R. R. Co. v. Jack- 3. Harley v. Charleston S. P. Co., sonville, etc., R. R. Co., 51 Ga. 458. 2 Miles (Pa.) 249. 7. Wilson v. Danforth, 47 Ga. 676. 4. Sprague v. Hartford, etc., Co., 5 For decisions holding that attach- § 84 DEFENDANTS CORPORATIONS. 131 Massachusetts it is said that a foreign corporation can be sued only by attachment, unless jurisdiction is otherwise expressly given by a statute.* When a national bank holds its corporate existence in an- other state than the one in which it does business, it is liable in an action of foreign attachment in the state where the busi- ness is done.^ A statute authorizing actions to be brought in attachment against corporations "created by or under laws of any other state, government, or country" is intended to include all corporations formed under the laws of any other govern- ment than the one enacting the law, and plainly includes the government of the United States, consequently under such a statute a national bank may be made a defendant in an attach- ment although it was organized and is located within the state." And although such bank may have committed an act of insolvency before the institution of the suit and its charter afterwards dissolved and its franchise forfeited by decree of the United States district court and a receiver properly appointed to take charge of its assets under act of congress, an attach- ment suit will not be dissolved, dismissed or abated, or the levy quashed because thereof.* A foreign attachment will lie in a circuit court of the United States against the effects of an inhabitant of a foreign coun- try,^ but it can not be begun in a circuit court of the United ment will not lie against corporations 3. Bowen v. First Nat. Bank of because of the particular statute oj Medina, 34 How. (N. Y.) Pr. 408; the state in which they do business, Cooke v. State Nat. Bank, 50 Barb. see Vogle v. New Granada, etc., Co., (N. Y.) 339. 1 Houst. (Del.) 294; Phillipsbury Bank 4. First Nat. Bank v. Colby, 46 V. Lackawanna R. R. Co., 27 N. J. L. Ala. 435. (3 Dutch.) 206; State v. N. C. R. Co., National banks come Tvithin the 18 Md. 193; Martin v. Mobile & O. provision of the statute that attach- R. Co., 7 Bush 116, 70 Ky. 116; ments can not be issued before final M'Queen v. Middleton Mfg. Co., 16 judgment has been entered. Central Johns. (N. Y.) 5. Nat. Bank v. Richland Nat, Bank, 52 1. Andrews ^?. Michigan Central R. How. (N. Y.) Pr. 136; Rhoner v, R. Co., 99 Mass. 534. See further as First Nat. Bank, 14 Hun 126. to non-resident corporations, post, 5. Fisher v. Conseque, 2 Browna § 90. (Pa.) Appx. 28. 2. Davis V. Cook, 9 Nev. 134. 132 PARTIES TO THE ACTION. § 84 States against the effects of an inhabitant of the United States/ although it has been said that a circuit court is a court of the commonwealth within which it is located.^ The action of for- eign attachment against an inhabitant of the United States must be begun in a state court. Many corporation cases begun in a state court are removed therefrom to a United States court within that state, for the advantages to be therein derived. And this may be done in all cases by a foreign corporation defendant, unless there is a state statute having the force to compel such foreign corporation to submit to the jurisdiction of the state court while it does business in sucli state.^ Where, however, service has been had by publication of notice, and such defendant has removed the cause to the Federal court, such de- fendant can not thereafter be heard to object to the service, and the attachment will hold by virtue of the jurisdiction acquired in the state court.* Nor can it object to the jurisdiction when it has pleaded in the court below. ^ A municipal corporation is not generally liable to attach- ment.^ Therefore, a county is not liable to foreign attachment.' Nor is a town, divided into school districts, liable to garnishment for a teacher's wages.* But the Iowa code declares that a mu- nicipal corporation is liable, like any other debtor, to be sum- 1. Hollingsworth v. Adams, 2 Dall. Globe Bank, 5 Blatcli. (U. S.) 107; (Pa.) 396. Hobbs v. Manhattan Ins. Co., 56 Me. 2. Ex parte Schollenberger, 86 U. 417; Morton t?. Mutual Life Ins. Co., S. 369. 105 Mass. 141. 3. Hobbs V. Manhattan Ins. Co., 56 5. Orleans, etc., V.Wallace, 50 Miss. Me. 417; Hatch v. Chicago Ry. Co., 6 244. Blatch. (U. S.) 105; Morton v. Mu- 6. Merwin v. Chicago, 45 111. 133; tual Life Ins. Co.. 105 Mass. 141; Mayer, etc., v. Horton, 38 N. J. L. Stevens V. Phoenix Ins. Co., 41 N. Y. 88; People v. Mayor of Omaha, 2 149. Neb. 166 ; McDougal v. Supervisors, 4 On 'the question of compelling a Minn. 184; Jenks f. Osceola Town- submission to the state courts, is a ship, 45 Iowa 554 ; Memi:)his v. Laski, conflict of state and national laws, a 9 Heisk. (Tenn.) 511 ; Buffham v. Ra- discussion of which is beyond the cine, 26 Wis. 449. scope of this work. The reader is re- 7. Ward v. County of Hartford, 12 f erred to some work on federal pro- Conn. 404. cedure. 8. Spencer v. School District No. 4. Bliven v. New England Screw 17, 11 R. I. 537. Co., 3 Blatch. (U. S.) Ill ; Barney v. § 85 DEFENDANTS—OTHER THAN THE DEBTOR. 133 moned as a garnishee.^ Since a state can not be sued in its own courts without it consents thereto, money in the hands of a state treasurer, though due from a non-resident debtor, can not be attached at suit of a creditor." §85. (g) Personsotherthanthe debtor, interveners.— It may happen that some person other than the defendant in the action of attachment may claim the property seized, or may at least have some interest therein which he desires to protect. While it has been said that none but a party to a suit can move to set aside an attachment,' yet such claimant is in most states per- mitted to intervene, and at least move for a dismissal of the writ. Such person is termed the intervener. Any person claiming may move to dismiss, although he is not a party to the original suit.* In some states his relief is limited to a dis- missal of the attachment from such part of the property seized as he may claim.' In others it is held that the claimant can only make such objections to the proceedings as he might do if attacking them in an independent and collateral action. He may not, like a defendant, avail himself of such errors as are sufficient for reversal. Neither does he admit the regularity of the proceedings by his appearance.' And in others again it is held that he may not only move to quash the attachment, but may have a jury and controvert the facts stated in the affidavit;' and that when he has established his claim he is entitled to recover it by judgment.* It seems that where the disclosure of the garnishee in at- tachment shows that the fund is claimed by another than the 1. Wales V. Muscatine, 4 Iowa 302, 7. Capehart v. Dowery, 10 W. Va. Compare, Clapp v. Walker, 25 Iowa 130. 315. See as to garnishment, Vol. II. 8. Borden v. Noble, 26 Kan. 599. 2. Lodor V. Baker, 39 N. J. L. 49. When property has been attached 3. Copeland v. Piedmont, etc., Ins. and a third person claims a right to Co., 17 S. C. 116. have his debt satisfied out of the at- 4. Mayberry ?7. Steagall, 51 Tex. 351. tached property, he can either defend 5. Trow's Printing, etc., Co. v. Hart, in his own name or in the name of 85 N. Y. 500. the debtor. M'Cluny v. Jackson, 6 6. Peters v. Dickey, Texas L. R., Gratt. (Va.) 96. Nov., 1884; Winslow v. Bracken, 57 Ala. 368. 134 PARTIES TO THE ACTION. § 85 principal defendant, the plaintiff must take steps to make the claimant a party to the suit; for otherwise there can be no binding adjudication of such party's claim.* The fact that a fund held in trust by a trustee has been by him deposited in a bank and mixed with other moneys in his name, does not change the character of the fund and the equi- table owner may still intervene and assert his rights.^ Where an intervener's claim is sustained, judgment must be given in his favor against the plaintiff, for costs/ But where after proper notice to such party he fails to appear and defend, judgment must be in favor of the plaintiff against the garnishee for the amount admitted in his answer to be in his hands.* Neither will the right of such party be cut off by any act equivalent to the consent of the garnishee. He can not waive the rights of other persons.^ Where such intervener is a judgment creditor and the attach- ment proceedings have been dismissed on his motion, and the case is taken up by the attaching creditor for review, such judg- ment creditor on whose motion the attachment was dismissed, becomes a necessary party 6 1. Look V. Brackett, 74 Me. 347. 2. Morrill v. Raymond, 28 Kan. 415. See also Vol. II, "Garnishment." 3. Kirby v. Corning, 54 Wis. 599. In an attachment of land in Texas, 4. Sailer v. Ins. Co., 62 Ala. 221. persons claiming homestead rights See also Fish v. Keeney, 91 Pa. St. therein may be made parties thereto. 138 ; Chesapeake and Ohio R. R. Co. v. Canadian and American Mortgage Paine, 29 Gratt. (Va.) 502. Trust Co. V. Kyser, (Tex. Civ. App.) 5. Blake v. Hubbard, 45 Mich. 1. 27 S. W. Rep. 280. 6. Ferguson v. Smith, 10] Kan. 394. CHAPTER VI. GROUNDS FOR ATTACHMENT. i 86. Generally. §102. 87. "Absent and absconding" debtors. ( a ) What comprehended 103. by the term "absent." 88. ( b ) Who is an abscond- ing debtor. 104. 89. (c) Who is a concealed debtor. 90. "Non-resident" debtors. 105. (a) "Residence" as contem- plated by the attachment 106. laws. 91. (b) Effect of temporary ab- sence. 107. 92. (c) Effect of an intention to return. 108. 93. (d) Effect of an intention to remove. 109. 94. (e) Effect of leaving family and going abroad. 95. (f) Effect of the act of re- 110. moving family and goods. 96. (g) Acquiring residence else- 111. where. 97. (h) "Non-resident," al- though domicile in the 112. state. 98. ( i ) Effect of doing business in the state while residing 113. elsewhere. 99. ( j ) Effect of doing business out of the state. 114. 100. When attachment will lie against one as a non-resi- 115. dent. 101. Oath of affiant not conclusive 116. of debtor's non-residence. (135) Effect of defendant's residing in another part of the state when suit is begun. Effect of personal service upon the defendant within the state. Effect of non-residence of part of a firm and residence of the others. Non-resident or foreign corporations. "Removal of property " and same "with intent," or "to the injury of." (a) Effect of an honest pur- pose. (b) Traverse of the allega- tion. (c) Fraudulent intent of one member of a copartner- ship. (d) Belief of the afliant not sufficient. Fraudulent disposal , secre- tion, or conveyancy of property. (a) Acts that have been held sufficiently fraudulent within the attachment law. (b) Acts that have been held not sufficiently fraudulent within the attachment law. (c) When fraud will or will not be presumed. (d) How the fraud estab- lished. (e) The burden of proof. 136 GROUNDS FOR ATTACHMENT. § 86 §117. (f ) Alienation or delivery to §122. (k) Giving a mortgage is not wife or child. alone sufficient fraud. 118. (g) Fraudulent assignment 123. ( 1 ) Fraudulent secretion of or transfer of property. money and p r o p e r t y — 119. (h) Effect of threats to con- Fraudulent statement re- vey, assign, etc. garding finances. 120. (i) Preference of creditors 124. (m) Fraudulent disposition not alone sufficient fraud. of partnership property. 121. ( j ) Confession of judgment 125. Fraud in contracting the debt. not alone sufficient fraud. 126. (a) Debt criminally con- tracted. § 86. Generally. — Attachment is merely an auxiliary writ to secure a fund to be applied to the satisfaction of the claim of the plaintiff, provided he shall be able to substantiate it in the main action. It is a universal requirement of the statutes of all the states that, before the plaintiff can have the benefit of this auxiliary writ, he must show by affidavit that the defend- ant has given rise to at least one of certain specified conditions of things which are wholly independent of the indebtedness itself. These conditions or circumstances, the concurrence of which, with the "money demand," will permit the "credi- tor" to subject his "debtor's" effects in this summary way to the satisfaction thereof, are called the "grounds for at- tachment." The remedy by attachment being an extraordinary remedy may not be resorted to except in cases clearly within the pro- visions of the statute.^ In order to protect the plaintiff in su- ing out an attachment, it is necessary that he should have reasonable grounds for the belief of the allegations of his affi- davit or petition.^ And in order to sustain the attachment, if a motion is made to quash or discharge it, supported by affi- davit denying the grounds alleged for the suing out thereof, the plaintiff will have to prove the actual existence of such ground by proper evidence.^ The attachment itself is justified, 1. Pierse v. Smith, 1 Minn. 82; 3. Seville ?;. Wagner, 46 Ohio St. 52, Walker v. Hagerty, 20 Neb. 482 ; Bun- 18 N. E. Pep. 430 ; Capehart v. Dowery, drem v. Denn, 25 Kan. 430 ; Excelsior 10 W. Va. 130. Fork Co., V. Lukens, 38 Ind. 438. Whether there is any evidence tend- 2. Carey v. Gunnison, 51 la. 202; ing to sustain the attachment is a Dogan V. Cole, 63 Miss. 153 ; Kennedy question of law which is to be deter- V. Chumar, 26 N. J. L. (2 Dutch.) 305. mined by the court. Seville r. Wag- § 87 "absent and absconding" debtors. 137 not by the belief of the affiant in the existence of a fact, but by the fact of its existence.^ Tlie validity of the attachment must be determined by the facts which existed at the date when it was issued/ The law does not entitle a party to an attach- ment simply because his claim is just. Some one, at least, of the causes laid down in the statute must exist, or the suing out of the attachment is wrongful.' The fact that the security for the payment of the demand has become valueless from lapse of time will not entitle the creditor to such process,* nor will the mere threat of the debtor to make a preferential assignment, because it is not necessarily a threat to make a fraudulent assignment.* The principal grounds for resorting to this harsh and ex- traordinary remedy are much the same everywhere. And the statement of the adjudications thereon may generally be ap- plied in other states where a like ground is recognized. Minor grounds differ in the different states, and the student will, of course, bear in mind the statutory provisions of his own state, and not permit himself to be misled by any remarks herein in- tended for the practitioners of some other state. Each of the various grounds for attachment will be considered in the fol- lowing sections of this chapter. §87. "Absent and absconding" debtors— (a) What com- prehended by the term " absent."— Attachments are gener- ally allowed to issue in a suit against "absent and abscond- ing" debtors. Therefore, while the mere absence of the debtor is not of itself a ground for attachment, it still becomes a matter of importance to know what the statute comprehends by the term ''absent," when such absence, together with "ab- ner, 46 Ohio St. 52, 18 N. E. Rep. 430 ; facts, but upon an affidavit of certain on motion toldissolve it, Bundrem v. facts. Dwyer v. Testard, 65 Tex. 432. Denn, 25 Kan. 430. 1. Sublett v. Wood, 76 Va. 318. Except in Texas, where it seems the 2. Denegre v. Milne, 20 La. Ann. truth of the affidavit can not be trav- 324 ; Todd v. Shouse, 14 La. Ann. 426. ersed in abatement of the writ, be- 3. Drummondt'. Ptevvart, 8Iowa341. cause it is there held that the writ is 4. Page v. Latham, 63 Cal. 75. authorized, not upon a given state of 5. Evans v. Warner, 21 Hun (X. \ .) "74. See;)ose, §111. 138 GROUNDS FOR ATTACHMENT. ' § 87 sconding," or iutent to evade the service of process, or intent to defraud creditors may constitute a ground for attachment. In the first place it may be said that a mere temporary absence of the debtor from the state, on business or on a voyage of pleasure, will be no ground for the attachment of his prop- erty,^ where there is no evidence of an intention on his part to change his residence.^ The word ''absent" should not be taken or understood in its literal sense, but as intended to mean those who have absconded or are non-resident. Mere absence from the state, on business or pleasure, not being within the mis- chief of the act." And, on the contrary, it is not necessary that there should be such a change of domicile as to make him a non-resident,* for he may be absent, within the meaning of the statute, when he notoriously resides abroad either perma- nently or temporarily.'' Where the debtor leased his dwelling house and furniture, and declared that it was his intention to be absent from the state for two years or longer, and left the state, traveling for pleasure and health, without leaving an agent upon whom citation could be served, and it appearing that it would have been impossible to bring him into court, ex- cept through his property, an attachment was permitted.^ An "absent or absconding debtor" must be one who lives out of the state, or has departed from the state, or from his usual abode, or who has so concealed himself in his house that he can not be served with process, with an intent unlawfully to de- lay or to defraud his creditors. Where a debtor went from a town of his usual abode to another town in the state, and there openly worked at his trade as a journeyman, for above three months, without taking any measures to conceal himself, he was held not to be an absent or absconding debtor with respect to a creditor in the place from which he left, though his friends I.Pitts V. Burroughs, 6 Ala. 733; 4. As to non - residence, see post, Mandel v. Peet, 18 Ark. 236 ; Watson § 90. V, Pierpont, 7 Martin (La.) 414. 5. Thompson's case, 1 Wend. (N. 2. Fuller v. Bryan, 20 Pa. St. 144. Y.) 43. 3. Mandel v. Peet, 18 Ark. 236; 6. Leathers v. Cannon, 27 La. Ann. Kingsland u. Worsham, 15 Mo. 657; 522. Simons v. Jacobs, 15 La. Ann. 425. And the fact that he did not absent §87 "absent and absconding" debtors. 139 and neighbors did not know where he was, and his absence was a subject of conversation among them.^ But an absence from the county on a visit for a period of only two days, and not for the purpose of evading service, will not justify a return of ''not to be found" under the Tennessee code, providing that in any civil action, when the summons has been so returned as to any defendant resident of the county, the plaintiff may, at his election, sue out an attachment.' Where, however, the debtor leaves his home with the intention of going out of the state, and consummates this purpose, and is absent from his home pursuant to such intention for four months (that being the statutory period permitting an attachment), it must be re- garded as absence from the state and ground for attachment, although some unlooked-for casualty may have delayed him a few days before passing beyond the territorial boundary of the state." And if a person voluntarily absent himself from the place of his residence, with the intention of engaging in hos- tilities against his country, he can not be permitted to complain of legal proceedings regularly prosecuted against him as an absentee, on the ground that he is unable to return or to hold communication with the place where the proceedings are con- ducted. That would be carrying the privilege of conira non volentem to an unreasonable extent.* Relating to the matter of the debtor's absence, information obtained from the family of the debtor, in answer to inquiries made at his residence, may be admitted in evidence in connec- tion with other facts, to show that he has left home, the time himself so long as he had expected to 2. Robson v. Hunter, 90 Tenn. 242, do did not affect attachment previ- 16 S. W. Rep. 466. ^ ously issued. Leathers .. Cannon, 27 3. Spalding v. Simms, 4 Metc_ (61 La. Ann. 522. Ky.) 285; Clark v. Arnold, 9 Dana 1. Fitch V. Waite, 5 Conn. 117 ; Stan- (3.9 Ky.) 305. ton .. Holmes, 4 Day (Conn.) 87; 4. Ludlow .. R^^^^^^'' J^ ^^'f .J^^- House V. Hamilton, 43 HI. 185; Mor- S.) 581; Foreman v. Carter, 9 Kan. gan .. Avery, 7 Barb. (N. Y.) 656; 674. As to one engaged "\ ""Ij^ary lew Orleans Canal, etc., Co. v. Com- service not being a non-resident see ly, 1 Robinson (La.) 231. Post, § 90 et seq. 140 GROUNDS FOR ATTACHMENT. § 88 when he went away, upon what business he went, and how long he intended to be absent.' If the debtor, in fact, be not absent within the meaning of the law, the court will quash the attachment on motion, al- though there may have been great reason to suspect the debtor had gone abroad.^ When the foreign debtor has died an attachment will not lie, because there is no longer any " absent debtor," within the meaning of the attachment statute.^ § 88. (b) Who is an absconding debtor. — The fact that the defendant is an " absconding debtor," is in most states suffi- cient to sustain an attachment.* To abscond in a legal sense means to hide, conceal, or absent one's self clandestinely with intent to avoid the service of legal process.* Absconding and concealing, as used in the statute, generally refer to such con- duct only as prevents the service of process in the state. The fact of the presence or absence of the debtor, and not the fact of his residence or non-residence, is what is considered in sus- taining an attachment on this ground.* An absent or abscond- ing debtor must be one who lives out of the state, or has de- parted from the state or from his usual place of residence, or has so concealed himself in his house that he can not be served with legal process.' He may be an absconding debtor without 1. Matter of Bliss, 7 Hill (N. Y.) 6. Hoggett v. Emerson, 8 Kan. 262. 187. Where debtors, in failing circum- Not so if the information be ob- stances, who leave their place of busi- tained from persons disconnected with ness and go into another county for the family. The informants should two months to prevent inquiry by cred- then make affidavit. Matter of Bliss, itors as to the true condition of their 7 Hill (N. Y.) 187. affairs, and then go to Canada, are 2. Wheelerv.Degnan,2Nott&McC. within the meaning of the civil code (S. C.) 323. See as to "Dissolution of of Kentucky, providing for an attach- Attachment," post. ment against defendants who have 3. Redfern v.Rumney, 1 Cranch C.C (U. S. of D. C.) 300. 4. Young V. Nelson, 25 111. 464 Blankinship v. McMahon, 63 N. C 180. 5. Bennett v. Avant, 34 Tenn. 152 Shugart v. Orr, 5 Yerger (Tenn.) 192 Stafford v. Mills, (N. J. Sup.) 32 Atl Rep. 7. left the county of their residence to avoid service of summons. Bank of Commerce v. Payne, 86 Ky. 446, 8 S. W. Rep. 856. 7. Fitch V. Waite, 5 Conn. 117 ; Cas- tellanos v. Jones, 5 N. Y. (1 Seld.) 164. § 88 WHO IS AN ABSCONDING DEBTOR. 141 departing from the limits of the state.' A person who shuts himself up from his creditors is an absconding debtor.^ But the fact that the debtor is about to abscond is not a suf- ficient cause for an attachment.' Therefore, where it was al- leged that the defendant was making secret preparations to leave for Ireland without any ostensible business to take him there, it was held not to be such a fact that the court could con- clude that he was in reality making preparations to abscond.* Nor is the mere fact that the defendant has left the state suf- ficient to sustain an attachment on this ground. It must ap- pear that he left with intent to abscond.* Where the debtor has never been a resident of the state where the action is brought he can not be an absconding debtor within the meaning of the statute.® A citizen of another state, who removes therefrom clandestinely, and conceals himself to evade process, does not become a resident of the state in which he hides, within the attachment law, until he has acquired a fixed place of residence.' However, it is said in Vermont that the party must have been an inhabitant of the state, or have secretly absconded from, or kept concealed within it.* But although a legal settlement in the state is not necessary to con- 1. Field V. Adreon, 7 Md. 109. A carpenter by trade enlisted in Under the Maryland code, provid- the army during the war with ISIexi- ing that any one who shall "secretly co, and while he was absent at the remove himself from his place of the seat of war, a creditor sued out an abode with intention to evade the attachment. It was held that the payment of his just debts, shall be debtor had not fraudulently or pri- considered as having absconded," it vately absconded, within the mean- is not necessary that the debtor should ing of the law allowing attachments, actually leave the state to entitle the and there was no probable cause to creditor to a writ of attachment, suppose that he had. Abrams v. Stouffer V. Niple, 40 Md. 477. Pender, Busby (N. C.) L. 260; same 2. Ives V. Curtis, 2 Root (Conn.) principle in Haynes v. Powell, 69 133. Tenn. 347. 3. Bennett v. Avant, 2 Sneed (34 6. Middlebrook v. Ames, 5 Stew. Tenn.) 152. & P. (Ala.) 158. 4. Lorrain v. Higgins, 2 Chand. 7. Shugart v. Orr, 5 Yerg. (Tenn.) (Wis.) 116. 192. 5. Bransons. Shinn (1 Green), 13 S.Austin v. Palmer, 2 Vt. 489; N. J. L. 250; City Bank v. Merritt Baxter v. Vincent, 6 Vt. 614. (1 Green), 13 N. J. Law 131. 142 GROUNDS FOR ATTACHMENT. § 85 stitute a debtor an inhabitant witliin the meaning of the act directing proceedings against trustees of absconding debtors, yet a man having a usual place of residence in another state coming to Vermont to teach a school for three months, and go- ing once or twice to his home during that time, and returning there at the end of the term, is not an inhabitant of Vermont within the act.* A mere transient residence in another place can not make one an absconding debtor.^ Neither will the fact that the debtor is a follower of either cause during a civil war, and separated from the place where the court is held by hostile lines of opposing armies.* Neither will a stranger in disguise flying from a foreign country to avoid creditors, and temporarily concealing himself in a house taken for that pur- pose, and not with a view to a permanent residence, be an ab- sconding debtor within the meaning of the law when he has contracted no debt in the state which he could defeat by ab- sconding.*, Where the manner of the defendant's leaving his place of residence is introduced to show that he is absconding, his say- ings at the time he left or immediately anterior thereto are part of the res gestss of the case.* But when they are made two weeks before, and not in the presence of the creditor or shown to have come to his knowledge previous to his suing out the attachment, they are not so admissible. And declarations made after the judgment is issued are incompetent.^ And if such statements be introduced by the plaintiff to show that the defendant is absconding, the defendant may show statements which he made out of the presence of the plaintiff for the pur- pose of showing that his removal was not with intent to remain or abscond.'. And where the defendant shows facts contrary 1. Boardman v. Bickford, 2 Aik. Burgess u. Clark, 3 Ind. 250; Pitts v. (Vt.) 345; Risewick v. Davis, 19 Md. Burroughs, 6 Ala. 733; Ross v. Clark, 82. 32 Mo. 296. 2. Fitzgerald's Case, 2 Caines (N. 6. Havis v. Taylor, 13 Ala. 324. Y.) 318. 7. Offutt V. Edwards, 9 Rob. (La.) 3. Haynes v. Powell, 1 Lea (Tenn.) 90. 347. But what will support a suit against 4. Thurneyssen V. Vouthier, 1 Miles him as a non-resident see post, §90, (Pa.) 422. and Farrow v. Barker, 3 B. Men. 5. Oliver v. Wilson, 29 Ga. 642; (Ky.) 217. § 88 WHO IS AN ABSCONDING DEBTOR. 143 to the facts shown by the plaintiff it will defeat the plaintiff's cause of action, although he may have had reason to believe at the time he sued out the attachment that the debtor had ab- sconded or was concealed.^ However, the appearance of the defendant in the suit is not of itself sufficient to show that he had not at the time the writ was issued.' But if the defendant in the attachment traverse the allegations of the plaintiff in the affidavit or petition for the issuance of the writ, the burden of proof is on the plaintiff in the attachment." Foreign attachment was not sustained against a partnership, as absconding or concealed debtors, when all the members of the firm had not absconded or kept concealed. A plea in abate- ment in such a case, that one of the debtors is not an abscond- ing or concealed debtor, seems to be sufficient,' unless the firm be insolvent.* But in one case when the affidavit showed that the firm of A & Co., "composed of A and certain parties un- known to the deponent, absconds," the attachment was sus- tained, although a motion was made to dismiss it on the ground that all the members of the firm had not absconded.' It is held in Illinois that a statute authorizing a sheriff to pursue and take the property of the absconding debtor in any county in the state, and to return it to the county from which the writ issued, contemplates that it is being removed at the 1 Matter of Warner, 3 Wend. (N. contents she refused to divulge; that Y ^ 424 ; Matter of Chipman, 1 Wend, she told her sister that he was m Can- CN Y ) 66 a\ Y.) 598 ; Exparte, Haynes, 18 AYend. (N. Y.) 611; Smith V. Luce, 14 Wend. (N. Y.) 237; Cadwell v. Colgate, 7 Barb. (N. Y.) 253; Miller v. Brinkerhoff, 4 Denio (N. Y.) 118; Kennedy v. Dillon, 81 b^chrMura^^S Wrndr(NrY.)T48; J. J. Marsh. (Ky.) 354; McCullough Shumway v. Stillman, 4 Cowan (N.Y.) v. Foster, 4 Yerger (Tenn.) 162 ; Saun- ''9'> And still others that the ob- ders v. Cavett, 38 Ala. 51. i'ection may be made at any time 4. See post, §131 -Formal part of by motion to quash before or after the Affidavit^ and §152, "Amend- plea, by demurrer; by prayer for in- ments of Atiidavit." struction from the court after swear- In a few states attachment suits are ing the jury ; after verdict on motion begun hy petition, and the general rule to arrest; or even after judgment in such cases is, that where the petition (without objection in the court below) sets forth sufficient grounds, and is upon writ of error assigning want of sworn to, it alone is sufficient and the jurisdiction as error. Bruce ^.. Cook, affidavit is then unnecessary. Burnam 6 Gill & J. (Md.) 345; Coward v. Dillinger, 56 Md. 59. See "Dissolu- tion of Attachment," iwst, § 326. 1. Mathews v. Densmore, 43 Mich. 461 ; Cross v. McMaken, 17 Mich. 511 ; Wells V. Parker, 26 Mich. 102 ; Gallo- way V. Holmes, 1 Doug. (Mich.) 330; V. Romans, 2 Bush (Ky.) 191 ; Scott v. Doneghy, 77 B. Mon. (Ky.) 321 ; Mad- dox V. Fox, 8 Bush (Ky.) 402; Huff- man V. Hardeman, (Tex.) 1 S. W. Rep. 575; Shirley v. Byrnes, 34 Tex. 625; Wirt V. Dinan, 44 Mo. App. 583. How- ever, the petition can not be dis- Beach V. Botsford, 1 Doug. (Mich.) pensed with in such cases, a mere 199-Greenvault^. F. and M. Bank, 2 affidavit setting forth facts ^s proof Doug. (Mich.) 498 ; Hale v. Chandler, and not pleading and is not sufficient. 3 Mich. 531 ; Whitney v. Brunette, Garrett v. Taylor, 14 S. E. Rep. 869, 15 Wis. 61; Bowen v. Slocum, 17 88 Ga. 467. Wis. 181; Conrad v. McGee, 9 5. As to "Attachment in Suits Al- Yerger (Tenn.) 428; Marx v. Abram- ready Begun" and "Ancillary Attach- son, 53 Tex. 264. meut," see post, §§ 192 and 215. 190 THE AFFIDAVIT. § 128 which will give the plaintiff cause of action in indehitatus as- sumpsit,^ and must further state facts and circumstances giving ground for bringing attachment to enforce such money demand.^ There is a rule of law which states that a process which is regular on its face and has been issued by a court haAdng juris- diction of the subject-matter will protect the officer serving the writ. But this is a rule of protection only, and while such a writ for attachment may protect the officer from liability in making the levy, it can not be made the foundation of a right or claim against others and no rights of property can be acquired under it.^ Where several orders of attachment are issued at the same time, or in succession, only one affidavit is necessary.* § 128. When it should be made. — ^The incipient steps in the attachment should be made as nearly cotemporaneous as con- veniently may be, so that suspicion be not thrown upon the plaintiff's case. There should not be such delay as to afford a presumption that the facts stated in the affidavit have ceased to exist.® Yet, where the allegations contained in the affidavit are of some matter subject to change, a lapse of intervening time between the making of the affidavit and the issuing of the writ is, of itself, not sufficient to compel the discharge of attachment.^ It need not be made at the precise time,' but may be made a reasonable time before issuing the writ.* An 1. See post, §133, "Averment of 4. Thompson v. Stetson, 15 Neb. Indebtedness." 112. 2. Greenway v. Mead, 26 N. J. L. In this case the affidavit was made 303; Smiths. Luce, 14 Wend. (N.Y.) March 6th, and the last attachment 237 ; Exparte Haynes, 18 Wend. (N.Y.) issued June 30th, following. But see 611 ; In re Faulkner, 4 Hill (N.Y.) 598 ; the rule in Michigan as to "When It In re Bliss, 7 Hill (N. Y.) 187 ; Hale v. Should Be Made," post, § 128. Chandler, 3 Mich. 531 ; Wight v. 5. Campbell v. Wilson, 6 Tex. 379. Warner, 1 Doug. (Mich.) 384 ; Cooper 6. Adams v. Lockwood, 30 Kan. 373 ; V. Frederick, 9 Ala. 738 ; Black v. Bris- Ferguson v. Smith, 10 Kan. 396. bin, 3 Minn. 360; Morgan v. House, 7, Creach v. Delane, 1 Nott & Mc- 36 How. (N. Y.) Pr. 326. Cord (S. C.) 189. 3. Earl v. Camp, 16 Wend. (N. Y.) 8. Foster v. Illinski, 3 Brad. (111. 562; Watkins v. Wallace, 19 Mich. App.) 345. 57-74 ; Le Roy v. E. Sag. City Ry. Co., Eleven days in this case was held to 18 Mich. 233; Beach v. Botsford, 1 be unreasonable. Fosters. Illinski, Doug. (Mich.) 199; Ortmantj, Green- 3 Brad. (111. App.) 345. Compare man, 4 Mich. 291. Mojarrieta t'. Saenz, SON. Y. 547. § 129 BY WHOM TO BK MADE. 1^1 affidavit of ''passed due" indebtedness made on the fifth of the month and not filed until the sixteenth has been held to be sufficient because there is a presumption of law that it is still due and unpaid, when no showing is made to the contrary.' And an affidavit of '' non-residence" filed in a Texas court on the third of July was held to be sufficient when the same was made in New York on the ninth of June, the court saying there was no room to suspect that the affidavit was not true when filed.' And an affidavit made by two different attorneys, one as to the indebtedness and the other as to the grounds of attachment, with an interval of four days, is held to be suf- ficient, the difference being too small to invalidate the pro- ceedings.* In Michigan, by force of a particular statute, no more than one day shall intervene between the date of the jurat and the issuance of the writ ; but since the time does not begin to run until the expiration of the day upon which the affidavit is executed the writ may issue on the day after the intervening day.* The law contemplates that the affidavit shall be made before the writ can issue, but where, as a matter of fact, both bear the same date, the affidavit will be presumed to have been made first by virtue of the rule that where two acts are done at the same time that will take effect first which ouglit in strictness to have been done first in order to give it effect.' § 129. By whom to be made.— The general rule is that the affidavit for instituting a proceeding by attachment must be made by the plaintiff himself or by his authorized agent or 1 O'Neil V N. J. & S. P. Mining soiiri. Avery v. Good, 114 Mo. 290, Co ' 3 Nev 141 21 S. W. Rep. 815. 2.' Wright V. Ragland, 18 Tex. 289. 5. Hubbardston L. Co. v. Covert, 35 3. Lewis V. Stewart, 62 Tex. 352. Mich. 254. 4 Horton r;. IMonroe, 57 N. W.Rep. As to the time when an affidavit 109 98 Mich 195. shall be made to procure the issuance An affidavit made in another state of a writ of attachment in suits al- on the same day a bond is executed ready begun, see post, § 215; Pulliam has been held to be sufficient in Mis- v. Aler, 15 Gratt. (Va.) 54. 192 THE AFFIDAVIT. §129 attorney in his behalf.^ But in a few states it must be made by the plaintiff himself, and in a few others, where the plaintiff is present, it must be made by him, and where he is absent such fact must be shown or some excuse given for not pro- ducing the affidavit of plaintiff, before an affidavit made by an agent properly authorized will sustain the writ/ And when- ever made by an agent it must be made by one having knowl- edge and authority.' One who has the general charge and supervision of another's business is generally deemed to have sufficient personal knowledge to make an affidavit in attach- ment for the collection of a debt to such other person/ A cashier and assistant cashier or clerk of a bank is a proper agent, and actual knowledge of the facts set forth may be pre- sumed by the positive terms of the affidavits/ 1. Manley v. Headley, 10 Kan. 88; Weaver v. Roberts, 84 N. C. 493. If the affidavit in a suit already be- gun be made by the plaintiff it need not recite that fact, if it is made by the person who signed the petition. Gilkeson v. Knight, 71 Mo. 403. In Virginia prior to 1806 the affi- davit had, of necessity, to be made by the plaintiff. Mantz v. Hendley, 2 Hen. & Munford (Va.) 308. In New Jersey, under such a require- ment, it must state that the affiant is a creditor of the defendant. Frisby V. Wilhamson, 16 N. J. L. 61. 2. Stewart v. Clark, 11 La. Ann. 319; Gribbon v. Ganss, (Sup.) 18 N. Y. S. 608; Raymond v. Ganss, (Sup.) 18 N. Y. S. 609; also Pool v. Webster, 3 Mete. (Ky.) 278; Gribbon v. Back, 35 Hun (N. Y.) 541 ; McVicker v. Cam- panini, 2 N. Y. S. 577. 3. See post, § 143 and § 144 ; Flake V. Day, 22 Ala. 132 ; Beer v. Hooper, 32 :\Iiss. 246 ; Murray v. Cone, 8 Port. (Ala.) 250; to the contrary, Didier v. Kerr, 12 Gill & J. (Md.) 499; Mantz v. Hendley, 2 Hen. & M. (Va.) 308. As to what averments will show authority of an agent, see Pool v. Webster, 3 Mete. (Ky.) 278; Wetmore V. Daffin, 5 La. Ann. 496 ; Lithgow v. Bryne, 17 La. Ann. 8 ; WiMis v. Ly- man, 22 Tex. 268. Smith v. Victorin, 56 N. W. Rep. 47, 54 Minn. 338; Har- denberg v. Roberts, (S. Dak.) 61 N. W. Rep. 1128. A general agent who has been par- ticularly instructed to place the claim in the hands of a lawyer for collection may make the affidavit in the princi- pal's name. Allen v. Champlin, 32 La. Ann. 511. But an affidavit made by an agent stating that the sum demanded is due over and above all counter-claims, dis- counts and set-offs existing in the favor of the defendant to the knowl- edge of the plaintiff himself is essen- tial. (Davis, P. J., dissenting). Mur- ray V. Hankin, 65 How. (N. Y.) Pr. 511. 4. Gribbon v. Ganss, (Sup.) 18 N. Y. S. 608; Raymonds. Ganss, (Sup.) 18 N. Y. S. 609; Bates v. Pinstein, (N. Y.) 15 Abb. N. C. 480. 5. National Park Bank v. Whit- more, 40 Hun (N. Y.) 499; American Exchange Bank v. Voisin, (N. Y.) 44 Hun 85 ; Trenton Banking Co. v. Hav- erstick, 11 N. J. L. 171. In the absence of any showing to U29 BY AVHOM TO BE MADE. 193 The same rule applies to attorneys; and affidavits made by them are in general sufficient, if they show the necessary facts.* Where a suit has already been begun and an attachment pro- cess is deemed to be requisite, the attorney of record in the case would seem to be authorized to make the necessary oath if he have knowledge of the facts.^ But it seems not to be suffi- cient when made by him partly on information and belief.' The affidavit of an attorney of a non-resident creditor stating that the debtor is also a non-resident has been held to be suffi- cient.* Where the affidavit of an attorney states that the facts are better known to him than to the plaintiff and that he knows them to be true, it will be sufficient.* But it is not necessary under the Ohio code that the attorney should show that the facts were within his personal knowledge, nor that the plaintiff shall show why the affidavit was not made by the party him- self.® Nor is the affidavit of an attorney fatally defective in the contrarj'- a recital that "plaintiff's But in New Jersey such an affidavit acting secretary, A B, being duly sworn, upon oath says," etc., is suffi- cient v/ithout any statement that the affidavit was made "on behalf of" the plaintiff. Fremont Cultivator Co. v. Fulton, 103 Ind. 393. 1. Flake v. Day, 22 Ala. 132; James V. Eichardson, 39 Hun (N. Y.) 399, Generally an affidavit made by plaintiff's attorney, or by an attorney in fact, whose power of attorney is filed in the case, is sufficient. Simon V. Johnson, (Pa.Com. PI.) 7 Kulp,166. 2. Hardie v. Colvin, 9 So. Rep. 745, 43 La. Ann. 851. 3. Brown v. Massman, 71 Ga. 859. In New York it is sufficient excuse for presenting an affidavit made by the attorney instead of the plaintiff himself, if the plaintiff be out of the state and the affiant believe that the defendant's attachable property will be removed from the state befoi'e an affidavit can be obtained from the plaintiff himself. Murphy v. Jack, 27 N. Y. S. 802, 76 Hun (N. Y.) 356. Att. 13 must state that the plaintiff is absent; though if it do not it is merely irregu- lar and not void and can be avoided only by direct proceedings. Westcott V. Sharp, 50 N. J. Law 392, 13 Atl. Rep. 243. The Kentucky code, which permits an affidavit to be made b}' an agent when the plaintiff is absent from the county intends an agency existing at the time the affidavit is filed and not a subsequent ratification of a then un- authorized agent or attorney. A mo- tion to quash will maintain in such a case. Johnson v. Johnson, 31 Fed. Rep. 700. And in that state a petition purporting to be statements of the plaintiff containing a verification by the attorney which states that the plaintiff is absent from the county may be used as an affidavit. Clark v. Miller, 88 Ky. 108, 10 S. W. Rep. 277. 4. Mitchell v. Pitts, 61 Ala. 21.9. 5. Rausch v. INIoore, 48 la. 611. 6. White y. Stanley, 29 Ohio St. 423. 194 THE AFFIDAVIT. § 129 Nebraska because it avers that "he" has commenced the action.^ But generally an attorney who is merely accustomed to attend to another attorney's business during his absence is not, in the absence of special authority, the agent or attorney of the other in such a sense that he may make the affidavit neces- sary for an attachment.^, In a few states the statutes do not require that the affidavit be made by the plaintiff, or his agent, or attorney, but permit it to be made by any person having knowledge of the facts, and when they so permit it to be made, there is no necessity of describing the affiant as the plaintiff's agent.^ In the absence of any statutory provisions for the appointment of agents or attorneys, for the purpose of suing out attachments, any one authorized by the plaintiff to collect the debt may make the requisite affidavit as one of the incidents of his authority.* And when it is permitted to be made by "any credible per- son," it need not state that the affiant is a credible person, for that will be presumed until the contrary appear.^ In Mississippi the affidavit may be made ( and the bond given ) by the person for whose use an attachment is sued out in the name of another person.* When the statute regulating the affidavit in attachment pro- ceedings authorizes it to be made by "an attorney," it will be satisfied if one attorney verify some of the essential facts, and another attorney other facts; provided the two affidavits taken together cover all the necessary points . For example : one attorney may make affidavit of the indebtedness and another attorney make affidavit of the grounds of the attachment.' 1. Jansen v. Mundt, 20 Neb. 320. 4. Derring & Co. v. Warren, 1 S. D, 2. Johnson v. Johnson, 31 Fed. .So, 44 N. W. Rep. 1068. Rep. 700. 5. Ruhl r. Rogers, 29 W. Y&.gl^, Nor will a ratification subsequent 2 S. E. Rep. 798; Delaplaint?. Rogers, to the issue of the writ cure the irregu- 29 W. Va. 783, 2 S. E. Rep. 800. larity. Johnson v. Johnson, 31 Fed. 6. Grand Gulf Railroad and Bank- Rep. 700. ing Co. V. Conger, 17 Miss. (9 Smed. 3. Benn v. Hatcher, 81 Va. 25; & M.) 505. Ex parte Robinson, 21 Wend, (N. Y.) 7. Lewis v. Stewart, 62 Tex. 352. 672. § 129 BY WHOM TO BE MADE. 195 But if two entire affidavits are made one will be treated as sur- plusage.^ Where a statute requires that the affidavit must be made by the plaintiff or some one in his behalf, an affidavit made by some one other than the plaintiff himself, which does not show that it was made in his behalf, will be fatally defective.' A mere recital, as "A, on behalf of B, being duly sworn," etc., is in- sufficient." The affidavit is void if it does not identify the plaintiffs.* Where, however, the affidavit is made by one stat- ing that he is the plaintiff's attorney, the legal inference will be that he made it "on behalf of the plaintiff." The plaintiff, though not named in the affidavit, will be sufficiently identified by annexing the writ thereto.' Furthermore an affidavit made "in behalf of the plaintiff" will be presumed to have been made by his agent or attorney in the absence of a showing to the contrary, the statute not requiring a sworn statement that the affidavit is made by his agent or attorney.^ In some states it is not necessary that the affidavit disclose who the plaintiff is, or even that the affiant is the agent of the plaintiff;' or even that it' is made on behalf of the plaintiff." But the general rule is that the character of the affiant must be shown, yet if the statute does not require the averment under oath that the affiant is such agent or attorney, it may be shown by way of recitation in the affidavit.' A few states hold that 1. Wharton v. Conger, 9 Smed, A that the action could not be supported M. (Miss.) 510; Borland v. Kings- in the name of the plaintiff. Down- bury, 65 Mich. 59. ing v. Philips, 4 Yeates (Pa.) 275. 2. Kingsbury v. Borland, (Mich.) 5. Stringer v. Dean, 27 N. W. Rep. 31 N. W. Rep. 620. 886, 16 Mich. 196. 3. Miller v. Chicago, Milwaukee, 6. Fremont C. Co. v. Fulton, 103 etc., Ry. Co., 58 Wis. 310. Ind. 393. 4. Burnside v. Davis, 65 Mich. 74, 7. Robinson v. Hesser, 4N. M. 144, 31 N. W. Rep. 619. 13 Pac. Rep. 204. Where the affidavit showed that the S.Simpson v. McCarty, 20 Pac. covenants, for the breach of which the Rep. 406, 78 Cal. 175 ; White v. Stan- action was brought, were made M-ith ley, 29 Ohio State 423; Grollman v. one who styled himself the agent of Lipsitz, (S. Car.) 21 S. E. Rep. 272. the plaintiff and who executed the 9. Murray v. Cone, 8 Porter (Ala.) instrument in his own name, without 250; Evans ?'. Lawson, 64 Tex. 199; reference to the plaintiff, the attach- Adams v. Kellogg, 29 N. W. Rep. 679^ ment was dissolved on the ground 63 Mich. 105; Wetherwax v. Paine] 2 Mich. 555. 196 THE AFFIDAVIT. § 129 if the character of the affiant is not disclosed, the affidavit will be insufficient ;^ and that the court will not look to other parts of the record to find out who the affiant is.^ Others hold that it will be sufficient, if it appear from the record,* and that such defect in the affidavit is merely a formal one and may be amended when objected to in the trial court.* When an affidavit is made by an agent or attorney, the rule, under some statutes, is, that he must state the source of his in- formation.* Under such a rule, an affidavit, made by plaint- iff's agent, stating that deponent is familiar with the transaction in question, and that plaintiff is entitled to recover the sum sued for "over and above all off-sets and counter-claims," is sufficient without stating that the facts in regard to the counter- claim "are known to the plaintiff."® But as a modification of this rule it is held, under a special statute to that effect, that an affidavit, made by the attorney or agent of the plaintiff, which states positively the amount due, need not state the means of the affiant's knowledge thereof.^ But an affidavit made by the plaintiff's attorney, though positive in form, is insufficient where it states that the affiant's information was obtained from letters written by plaintiff and from a sworn statement of ac- count in affiant's possession, or that affiant's knowledge is de- rived from statements made by the plaintiff and his agents.' In Georgia, when an agent makes the affidavit he must state positively the grounds for the attachment, but he may state the amount of the indebtedness to the best of his belief.' There- 1. Wiley V. Aultman, 53 Wis. 560; vacate the attachment because of such Wetmore v. Daffin, 5 La. Ann. 496. defect, is without power to allow an 2. Willis V. Lyman, 22 Tex 268. amendment. Buhl v. Ball, 41 Hun S.Irwin v. Evans, 92 Mo. 472; (N. Y.) 61. Mackey v. Hyatt, 42 Mo. App. 443. 6. Billwiller v. Marks, (City Ct. 4. Mackey v. Hyatt, 42 Mo. App. N. Y.) 16 N. Y. S. 541, 21 Civil Proc. 443; Rutledge v. Stribling, 26 111. Rep. 162; Barstow Stove Co. «. Dar- App. 353 ; Tracy v. Gunn, 29 Kan. 508. ling, 81 Hun, 564, 30 N. Y. S. 1031. 5. Buhl V. Ball, 41 Hun (N. Y.) 61 ; 7. Anderson v. Wehe, 58 Wis. 615; Marine Nat. Bank v. Ward, 35 Hun Rice v. Morner, 64 Wis. 599. (N.Y.) 395; Smith V. Arnold, 33 Hun 8. Streissguth v. Reigelman, 75 (N.Y.) 484; Cribben v. Schillinger, 30 Wis. 212, 43 N. W. Rep. 1116; Traut- Hun (N. Y.) 248. mann v. Schwahlm, 50 N. W. Rep. 99, And when it fails to so state, the 80 Wis. 275. court, on the hearing of a motion to 9. Stowers v. Carter, 28 Ga. 351. § 130 BEFORE WHOM TO BE MADE. 197 fore an affidavit made by an attorney, who swears, to the best of his knowledge, that the party is indebted, in a certain amount to the firm for which he is attorney, and further swears to the grounds of attachment, setting them forth in the language of the statute, is sufficient to suj^port a writ.* An affidavit for attachment signed in the name of a firm is insufficient, and the writ of attachment issued thereon can not be sustained.' It should be made by an individual member of the firm." An affidavit made by one partner residing in New York for an attachment against the property of a non-resident debtor of the firm is sufficient although the subsequent plead- ings show that his copartner was also a non-resident.* But under the code of Georgia, an attachment issued in the name of a copartnership will not be dismissed for failure to set out the names of the individuals composing the firm.^ § 130. Before whom to be made.— It may be stated, as a general rule, that the affidavit for attachment may be made before any officer authorized by the laws of the state to ad- minister oaths.' It is not necessary that the affidavit be made 1. Gazan v. Royce, 78 Ga. 512, 3 affidavit bearing the same defect can S. E. Eep. 753. not be aided by reference to the peti- 2. Norman v. Horn, 36 Mo. App. tion ; for the statements being con- 419, See Fortenheim v. Claflin, 14 S. tradictory, there is nothing to show W. Eep. 462, 47 Ark. 49. which is correct. Focke y. Harde- 3. Bosbyshell v. Emanuel, 12Smed. man, 67 Tex. 173, 2 S. W. Rep. 363. & M. (Miss.) 63. But the accidental omission in the And in a state where the courts will petition of the name of one of the look to the record to discover who the plaintiffs, where they are a firm, will affiant is, he need not show in his not vitiate an attachment where the affidavit that he has an interest in the affidavit was made by one of the firm firm. Bosbyshell v. Emanuel, 12 on behalf of the firm, and the bond Smed. & M. (Miss.) 63. was given by the firm as principals. 4. Renard v. Hargous, 13 N. Y. Barriere v. McBean, 12 La. Ann. 493. (3 Kern.) 259. 5. Gazan v. Royce, 78 Ga. 512, 3 S. In an action by a partnership, where E. Rep. 753. the statement of the Christian name 6. Cassedy v. Mayer, 64 Miss. 356, I of one of the partners in the writ of So. Rep. 510; Griffingv. Mills, 40 Miss, attachment is not the same as that 611; Rowley v. Berrian, 12 III. 198. given in the petition in the cause, it And the courts will take notice who is a variance fatal to the writ, and the are;; authorized to administer oaths 198 THE AFFIDAVIT. §130 before the same ofl&cer who issued the writ, or before an officer in the same county in which the writ is to run.* An affidavit made before a notary of another state, who certified that he is authorized to administer oaths, will authorize the issuance of an attachment.^ But in Kansas and Michigan the affidavit can not be verified before a notary public who is the attorney of record of the plaintiff in the action.' The affidavit may be made before the clerk of the court, or before his deputy clerk, who has general authority to perform the duties of his principal, even though it be not made to ap- pear that the clerk was absent at the time.* Except in a suit which is brought by the clerk himself, when, if he makes affi- davit before his deputy clerk, the writ will be quashed or the attachment dismissed on motion.' Although the statute may within the county in which the suit is brought. Rowley v. Berrian, 12 111. 198. An affidavit sworn to before the clerk of one county, in another county, is a nullity. Tanner & D. EJ Co. V. Hall, 22 Fla. 391. But when an affidavit is made before a justice of another state, it must be made to appear that he was authorized to administer oaths. Fellows v. Mil- ler, 8 Blackf. (Ind.) 231. The objection that the attachment was granted upon an affidavit which was sworn to before a commissioner in another state, but which was sub- mitted to the judge who granted the order without any certificate of the secretary of state, as required by New York law, is not necessarily fatal to the proceeding below. The omission may be amended and supplied. Law- ton V. Kiel, 51 Barb. (N. Y.) 30. As to the correction of informali- ties, clerical errors and omissions, see post, § 152. The signature of a petitioner or wit- ness, and the jurat of the magistrate annexed, are sufficient evidence that the oath was taken by the one and administered by the other. Loeb v. Smith, 78 Ga. 504, 3 S. E. Rep. 458. 1. Cassedy v. Mayers, 64 Miss. 356, 1 So. Rep. 510; Wright v. Smith, 66 Ala. 545 ; Wicker v. Schofleld, 59 Ga. 210. 2. Mineral Point R. R. Co. v. Keep, 22 111. 9. 3. Tootle V. Smith, 34 Kan. 27 ; How. Stat. (Mich.) §637; Swearington v. Howser, 37 Kan. 126, 14 Pac. Rep. 436; Yoakan v. Howser, 37 Kan. 130; 14 Pac. Rep. 438. But such an affidavit is only void- able and may be amended. See cases above, and further as to "Amend- ments" see post, § 152. 4. Dorr v. Clark, 7 Mich. 310. Where by the jtirat it appears that the affidavit was sworn to before "H. L. W.," and the writ of attachment was tested and signed by "H. L. W., clerk," etc., it was presumed that the affidavit was sworn to before the clerk. Singleton v. Wofford, 4 111. (3 Scam.) 576. 5. Owens v. Johns. 59 Mo. 89. § 131 FORMAL PARTS OF THE AFFIDAVIT. 199 not expressly authorize it to be done the affidavit may be made before the clerks in vacation.* The affidavit in attachment may be made before a judge. ^ And it seems that an affidavit, made before a judge of the court from which the writ issues may be read in support of another like application, made to the same judge, on the same day, by other plaintiffs against the same defendant, to support the charge of absconding." It may be made before the judge of any court of any state of the United States.* But an affidavit which was made before an associate justice of the district court of Allegheny county, Pennsylvania, and which recited that it was taken before "the subscriber, a judge of the district court of said county, being a court of record;" the clerk of the court certified that the judge, before whom the affidavit was made, was at the time associate law judge of said court, but did not certify that the court was a court of record ; the au- thentication was held to be insufficient, and the attachment was therefore a nullity.* There being nothing in the state statute to the contrary, the affidavit may be made before a commissioner of the state in which the suit is begun, who resides in another state.® § 131. Formal parts of the affidavit.— An affidavit for at- tachment, like any other legal document, must contain certain clauses tending to establish certain facts necessary to be shown ; these are called the formal parts. Where a form is prescribed by statute it should be followed, and an affidavit which does follow the statute is always suffi- cient ; but where no form is specified a substantial compliance with all the requirements of the law is sufficient.' 1. James V. Jenkins, Hempst. (U. S. Griffing v. Mills, 40 Miss, 611 ; Irving Cir. Ark.) 189. v. Edrington, 6 So. Rep. 177, 41 La. 2. Washington v. Hodgskin, 12 Gill Ann. 671. & J. (Md.) 353. 7. Shockley v. Bulloch, 18 Ga. 283; 3. Hallock V. Van Camp, 8 N. Y. S. Harrill v. Humphries, 26 Ga. 514 ; 588, 55 Hun (N. Y.) 1. McCollem v. White, 23 Ind. 43; Mat- 4. Smith V. Greenleaf, 4 Har. & M. thews v. Dare, 20 Md. 248. To the (Md.) 291. contrary, Loeb v. Smith, 78 Ga. 504, 5. Coward v. Dillinger, 56 Md. 59. 3 S. E. Rep. 458. 6. Grider v. ^Williams, 25 Ark. 1 ; 200 THE AFFIDAVIT. § 131 The affidavit for attachment must be in writing/ The formal parts of an affidavit in a suit are the title, the venue, the signature, the jurat and the authentication; if, how- ever, it lack the title or caption, it is nevertheless an affidavit, provided it can be identified with the other pleadings in the cause, and is otherwise sufficient in form to satisfy the statute.^ Good practice would require that the affidavit be entitled in the suit in which it is to be used, but, as the title is only for the purpose of identification with the cause, if it can be identified when it lacks the title, it will be good, and if it is entitled in a suit that is not pending it is a nullity.* It will be construed in connection with the writ issued at the same time; and, if it con- tains a reference to ''the above entitled cause" when it is in fact not entitled, it may be cured by reference to the writ.* An affidavit showing that it was made in the cause and which is sworn to by a person stating that he is "agent and attorney for plaintiffs," and which was filed in the same court, on the same day, and with the same file number as the petition and attach- ment bond, sufficiently identifies it with the cause in which it was filed, whether written on the same paper as the petition or not.^ An affidavit made by the plaintiff, alleging an indebted- ness to him by the defendant, but which is not entitled of the court, nor of the parties, if it avers sufficient ground for attach- ment, will be in substantial compliance with the statute, and will sustain an attachment.® But an affidavit which omits to state the title of the cause, which does not state who affiant is, and nowhere names either the plaintiff or the defendant, is wholly insufficient.' 1. Gazan v. Royce, 78 Ga. 512, 3 S. 3. Beebe v. Morrell, 76 Mich. 114, E. Rep. 753; Pinson v. Kirsh 46 Tex. 42 N. W. Rep. 1119. 26. 4. Grey v. Steedman, 63 Tex. 95; But in suits begun it need not al- Munzesheimer v. Heinze, 74 Tex. 254, ways be a separate writing, see ante 11 S. W. Rep. 1094. § 127, note. See as to magistrates, 5. Munzenheimer v. Manhattan M'Kenzie v. Buchan, 1 Nott & M. Cloak and Suit Co., 79 Tex. 318, 15 S. (S. C.) 205-223. W. Rep. 389. 2. Beebe v. Morrell, 76 Mich. 114, 6. Cheadle v. Riddle, 6 Ark. 480. 42 N. W. Rep. 1119; Kinney v. 7. Burgess w. Stitt, 12 How. (N. Y.) Heald, 17 Ark. 397 ; West v. Woolfolk, Fr. 401. 21 Fla, 189 ; Harris v. Lester,80 Til. 307. § 131 FORMAL PARTS OF THE AFFIDAVIT. 201 It is said, however, in Wisconsin, that there is no suit pend- ing until the attachment issues, and that it is therefore irregular that an affidavit for procuring the attachment be entitled in the cause/ The venue may, by permission of the court, be added by the proper officer, even after a motion has been made to quash the attachment on the ground of its omission/ The want of it will be fatal, however, unless it is supplied by amendment/ It has been held in suits begun by petition for attachment, when the petition was addressed to a proper court of the proper county, and the affidavit for the writ attached to the petition was signed by the affiant and certified by one giving his initials and the initials of his office only, thus, *'H. B. M., J. P.," without stating the county, or state, w^iere the oath was ad- ministered, that it will be presumed that the justice adminis- tered the oath within the proper county, and that the failure to set out more definitely the county and state where the oath was administered was an omission which could not materially preju- dice the appellant/ If the affiant's name is omitted from the body of the affidavit it will be no ground for dissolving the attachment, but in prac- tice it is generally so recited/ The names of the individual members of a copartnership should be recited, but the affidavit will not be rendered void by a failure to make such recitation/ And the defendant's objection to the omission will not be heard after he has appeared and replevied the property/ Nor will the fact that two of the persons named as defendants in the caption of the affidavit were not connected with the trans- action out of which the claim arose, be reason for disturbing the attachment/ But if, however, the petition and the affida- 1. Quarles v. Robinson, 1 Chand. 5. Rudolf v. McDonald, ^6 Neb. (Wis.) 29. 163. 2. Steuthers v. McDowell, 5 Neb. 6. Johnston v. Smith, 10 S. E. Rep. 491. 354, 83 Ga. 779. 3. Rudolf V. McDonald, 6 Neb. 7. De Leon v. Heller, 77 Ga. 740. 163. 8. Cunningham v. Von Pustan, 9 4. Snell V. Eckerson, 8 Iowa 284. N. Y. S. 255. 202 THE AFFIDAVIT. § 131 vit are at variance in giving the names of the members of the plaintiff firm, the variance will be fatal.* The omission or misspelling of the defendant's name in the affidavit is considered a mere clerical defect, which may be amended, but when the names are idem sonans no amendment is necessary.^ The court will look to the whole record to supply technical omissions/ And where all the jurisdictional facts for an at- tachment proceeding are set forth, clerical errors are considered unimportant. As, for example, the omission of the word "are"* or "is," before "justly indebted," is considered unim- portant.® In an affidavit for attachment averring that "defend- ant about fraudulently to convey and assign property * * * to hinder and delay creditors, "the omitted words "is" and "his" maybe inserted to fill out the blanks.* A verification ' 'that statements in" the petition are true, omit- ting the word "the" before the word "statements," is suf- ficient.' An affidavit, made by one of two plaintiffs, setting forth that the affiant believes "he" ought to recover, etc., is not fatally defective in the use of the word "he" if it is suf- ficient in other respects.* In an affidavit, made by a partner- ship, stating that the defendants are justly indebted to the "said plaintiff," and that the plaintiffs are likely to lose their debt, the use of the word "plaintiff" in the blank intended for the creditor's name is a mere clerical error and not objection- able.^ And the omission of the word "dollars" in stating the amount of the plaintiff's claim has been regarded as a clerical error and not sufficient to void the writ issued on such affida- 1. Focke V. Hardeman, 67 Tex. 5. City Nat. Bank v. Flippen, 1 S. 173. W. Rep. 897, 66 Tex. 610. 2. Cartwright v. Charbert, 3 Tex. 6. Stewart v. Cabanne, 16 Mo. App. 261 ; Ruth v. Green Bay & M. R. R. Co., 517. 37 Wis. 344. 7. Clark v. Miller, 88 Ky. 108, 10 S. 3. Miller v. Eastman, 27 Neb. 408, W. Rep. 277. 43 N. W. Rep. 179; McClanahan v. 8. Fairbank v. Lorig, 4 Ind. App. Brack, 46 Miss. 246; State v. Foster, 451, 29 N. E. Rep. 452. 10 Iowa 435. 9- Weis v. Chipman, 3 Tex. Civ. 4. Huffman v. Hardeman, (Tex.) 1 App. 106, 22 S. W. Rep. 225. S. W. Rep. 575. § 131 FORMAL PARTS OF THE AFFIDAVIT. 203 vit ' But under the Texas statute requiring that parties suing out an attachment make oath that the attachment sought is not for the purpose of injuring or harassing "either of the de- fendants named therein, an affidavit that "this attachment is not sued out for the purpose of injuring or harassing the de- fendant" where there are two defendants, is insufficient. An affidavit for an attachment against a corporation need not allege defendant's corporate character." And in an affidavit for attachment against a private corporation of the state the title of the act incorporating it need not be stated; for it such statement be necessary in a pleading, the omission of it is not a jurisdictional defect but one wliich may be supplied by amendment either before or after judgment.* An affidavit which is not signed by the affiant is a nullity. It is no affidavit and a court can get no jurisdiction there- under ' Nor can the clerk allow the signature to be affixed to the affidavit after the issuance of the writ. Nor will the fact that the defendant appeared and pleaded to such affidavit sub- sequently filed cure the defect. The writ must be .^lashed. The rule relating to idem sonans is applicable m affidavits tor attachment, for where the body of an affidavit showed that it was made by D. Herman, and it was signed D. Harmon, it was held to be sufficient under the attachment laws of Georgia. 1 De Bebian v. Gola, 21 Atl. Rep. 4. Ruthe v. Green Bay & Minn. R. 275-. ?4 nf 2T2. H- Co., 37 Wis 344. See as to <.^eces- 2 Perrill v. Kaufman, 12 S. W. sary Averments, Pof, ^J^- '^^J^Aderth^N^'ldrsttlfeiirin, ^- Ca-s, 4Heis. (Tenn.) 532^^^^^^^ that an affidavit for an attachment to pare Snnmons H'-dj^ ^O" ^ ^^^7^ issue on Sunday state that it will be Com. Co., (Idaho) 39 Pac. Rep 5&U^ ''too late to acquire a lien by said writ 6. Third Nat. Bank .. Garten, 40 if he waits/' etc., the substitution of Mo. App. 113; Carlise .. Gunn, b8 the word "upon" for the word "by" Miss. 243, 8 So. Rep^ .4o. in such clause has been held to be a But Tennessee has held to the con derTclletor and not sufficient to in- trary when the officer, b^^^^^^^^^^ vahdate the attachment. Levy v. ^^^ ™f «' ^**f ^^f^^j' ^^^^ Elhott 14 Nev. 435. See further as to to (and subscribed) before him. West j?>uioii, i-± cv , g ,^r, Tpnnessee Aer., etc., Assoc, v. Madi- " Amendments," post, § 152. iennessee Agi ., ^ , 3. Mississippi, etc., R. R. Co. «. son, 9 Lea (Tenn.) 407 See also Bates Plant, 58 Ga. 167. v. Robinson, 8 Iowa 0I8. ' 7. Kahn v. Herman, 3 Ga. 266. 204 THE AFFIDAVIT. § 131 The signing of an affidavit for attachment by two persons jointly is sufficient, although it purports to be made by only one of them.^ The affidavit must be sworn to, but it is not necessary that the affiant sign the oath, and he is as liable to the penalties of perjury if he does not sign as if he does.^ The clerk admin- istering the oath to the affiant should attest the fact that the affidavit was sworn to, but if he fails so to do it will not render the attachment inoperative. The certificate may be added by amendment.' And so may the omission to attach the jurat to the affidavit at the time of administering the oath be cured by amendment.'* But the error of issuing an attachment on a certificate of the clerk, intended as an affidavit, which does not state that the plaintiff was sworn, and contains no jurat, can not be cured by a subsequent order in which it appears that the clerk, having been sworn, states that the plaintiff did, in fact, make oath to the matters stated in the certificate.^ While the officer should, of course, sign the jurat and add the description of his office,* yet if the affidavit has been act- ually sworn to, and that fact certified to, the omission to sign the jurat may be cured by amendment.' And where he signs his name and adds the word ''clerk" the affidavit will be good even without more inllj designating his office or the ad- 1. Fortenheim v. Claflin, 14 S. W. v. Smith, 15 S. E. Rep. 977, 36 W. Ya. Rep. 462, 47 Ark. 49. See Norman v. 788. Horn, 36 Mo. App. 419. 5. Cosner's Adm'r v. Smith, 15 S. E. 2. Bates v. Robinson, 8 Iowa 318. Rep. 977, 36 W. Va. 788. As to the "suitor's test oath" see 6. Birdsong ti. McLaren, 8 Ga. 521. Kyle V. Jenkins, 6 W. Va. 371; Ross 7. Cook v. Jenkins, 30 Iowa 452; t'. Jenkins, 7 W. Va. 284; Lynch v. Stout t-. Folger, 34 Iowa 71; Kruse u. Hoffman, 7 W. Va. 553; Lynch v. Wilson, 79 111.233; Hyde v. Adams, Hoffman, 7 W. Va. 578. 80 Ala. Ill ; McCartney v. Branch 3. Wiley v. Bennett, 9 Baxter Bank, 3 Ala. 709; Farrow v. Hayes, (Tenn.) 581; May v. Farrill, 22 Tex. 51 Md. 498; Hart v. Jones (Pa. Com. 340. PI.), 6 Kulp. 326; Farmer's Bank v. 4. Fortenheim v. Claflin, 14 S. W. Gettinger, 4 West Va. 305; English v. Rep. 462, 47 Ark. 49. Wall, 12 Rob. (La.) 132; Tacoma But not if it also lack the statement Grocery Co. v. Draham, 36 Pac. Rep. of the amount due. Cosner's Adm'r 31, 8 AVash. 263; Wiley v. Bennett, 9 Baxter (Tenn.) 581. § 132 NECESSARY AVERMENTS GENERALLY. 205 dition of the seal of the court.^ And if he sign the affidavit with his name only, and sign the writ issued on the same day by the same name, and add the description of his office, the omission in the affidavit will be cured by reference to the writ.' And where an affidavit for a writ of attachment pur- ports, on its face, to have been made in a named county, and the jurat is signed by one as a notary public, it will be in- tended that the one who signed was a notary for that county if the suit is in fact brought in such county.' The omission of the jurat is the omission of a formal part, and may be corrected by amendment.* The use of the seal of domestic officers is not a necessary prerequisite. Where an affidavit for a writ of attachment is made in the county in which the suit is brought and before a notary public it need not be authenticated by his notarial seal.' Nor is it necessary that the signature of the clerk of the court to a jurat for an attachment be verified by his official seal.' If necessary it may be added by amendment.' Although one or more informalities may be cured by amend- ment, yet if a written instrument purport to be an affidavit for attachment and be neither signed by the affiant nor contain a jurat signed by the clerk under the seal of the court, or by some other officer legally authorized to administer oaths, it will be fatally defective; and no attachment can be founded thereon.* Defects in an affidavit that are merely informal, and do not go to the jurisdiction, are waived by an appearance to the action.^ § 132. Necessary averments— Generally.— To every valid 1 Simon V. Stetter, 25 Kan. 155. 7. Whittenberg v. Loyd, 49 Tex. 2. Singleton .. Wofford. 4 111. (3 633. ^^_^^ ^^^^ ^^^^ ^ ^^^^^^^^^ ^^ 'TDye?;. Flint, 21 111. 80. Mo'. App. 113; Carlisle .. Gnnn. 68 o. uycL V. , o n^i T Miss 243. 8 So. Rep. '4o. 4. Skinner .. Beshoar, 2 Col. T. ^^^^'^'^^^^ ^ ^\^^^^^ , ,„a. 121; 383. { "Amendment of Affidavit" 5. Dyer ..Flint, supra. '1, §152, and as to "Appearance of 6. Finn .. Rose, 12 Iowa 565. ^^^l^^l^,,, ^,,, § 216 et se,. 206 THE AFFIDAVIT. §132 afl&davit for an attachment, there must be two distinct and es- sential averments : ( 1 ) There must be an averment of a cause of action between certain named parties, based upon a money- demand ;^ and (2) there must be a further averment of a ground for attachment ; that is, a statement of facts, because of the existence which the statute will permit an attachment to issue. These averments will receive particular mention presently. There are sometimes other and minor allegations required,^ but these two conditions are always essential and 1. It has been held in Michigan that the real plaintiff was sufficiently denoted by the affidavit of one show- ing himself to be the agent of a named company and that it was the concern with which the defendants had the dealings on which the suit was based, although the names of the parties comprising such company were not stated. Emerson v. Detroit Steel and Spring Co., 100 Mich. 127, 58 N. W. Rep. 659; Emerson v. Spearman, 100 Mich. 127, 58 N. W. Rep. 659. And in Wisconsin an affidavit al- leging the indebtedness of the defend- ants to the plaintiff and further stat- ing that the deponent believed "that the parties aforesaid" had assigned or were about to assign their property to defraud creditors, the court held that the words "the parties aforesaid" necessarily referred to the defendants and that there was no such indefinite- ness and uncertainty as to render the affidavit defective in that regard. Spitz V. Mohr, 86 Wis. 387, 57 N. W. Rep. 41. 2. It is required in Texas that the affidavit state that the attachment is not sought for the purpose of "injur- ing or harassing" the defendant. If it does not so state, the attachment will be dismissed on motion or at the instance of the sureties on the bond. Moody V. Levy, 58 Tex. 532; Burch v. Watts, 37 Tex' .135. In Tennessee the affidavit in an attachment ancillary to an action ex delicto must state the cause of action, the nature thereof, the tribunal in which it is depending, the amount of damages laid, and that the cause of action stated is just. Thompson v. Carper, 11 Humph. (Tenn.) 542. But in New York and Minnesota an affidavit for attachment in suits al- ready begun need not state that the action has been commenced. Stoiber V. Thudium, 44 Hun (N. Y.) 70; Blake V. Sherman, 12 Minn. 420. In Michigan, before an attachment can issue in an action for tort against a non-resident, the affidavit must fully describe the cause of action. As to what is not a sufficient averment of negligence under such statute see Mc- Crea v. Muskegon Circuit Judge, 100 Mich. 375, 58 N. W. Rep. 1118. In West Virginia, under a statute requiring that a defendant corpora- tion shall appoint a person to accept service of process within one hundred days of its organization, the affidavit in attachment must show that the one hundred days have elapsed since the organization of the corporation or it can not be proceeded against for hav- ing failed to comply with such require- ment. United States Baking Co. v. Bachman, 38 W. Va. 84, 18 S. E. Rep. 382. And in West Virginia it will not be §132 NECESSARY AVERMENTS GENERALLY. 207 their averment in all cases absolutely necessary.* An affidavit is sufficient if it alleges all the material issuable facts neces- sary to entitle the plaintiff to recover in the action. It need not allege such matters as are merely issuable, or available to the defendant by pleading it in abatement.^ It is not generally neco.ssary that there should be an averment of the citizenship of the plaintiff in the affidavit.* Under a statute allowing an action on a contract against a foreign corporation only where the plaintiff is a resident, or where the contract was made within the state, or where the cause of action arose within the state, the court has no jurisdiction to grant an attachment un- less the affidavit shows that the court has jurisdiction of the subject-matter. That is to say, to secure under such a statute an attachment against a foreign corporation, it is a prerequisite that the affidavit should show that the plaintiff is a resident ; fatal if the affidavit fails to aver tech- nically that affiant is entitled to re- cover "in the suit" the amount speci- fied, if the same appears from the filing of the affidavit, which avers that affiant is entitled to recover a certain sum by virtue of a note, describing it, that the sum is due and unpaid, and that affiant has instituted a suit to re- cover it, and is about to issue an at- tachment in such suit; it also further appearing that the attachment was issued in the writ, and the debt being one that could properly be recovered therein. Altmeyer v. Caulfleld, 17 S. E. Rep. 409 37 W. Va. 847. But in North Carolina it is not necessary in an attachment against a non-resident that the affidavit state that the defendant " had property in the state." Parks v. Adams, 18 S. E. R. 665, 113 N. C. 473. When it is necessary that the affi- davit shall be made by the plaintiff himself, it must state that the affiant is a creditor of the defendant. Fris- by V. Williamson, 16 N. J. L. (1 Harr.) 61. 1. Skiff V. Stewart, 39 How. (N. Y.) Pr. 385; Gould v. Bryan, 3 Bosw, (N. Y.) 626; Hass v. Brower, 76 N. C. 428; Willets v. Ridgway, 9 Ind. 367; Hisler v. Carr, 34 Cal. 641. 2. Primrose v. Roden, 14 Tex. 1 ; Barbee v. Holder, 24 Tex. 225, As to cases in which an attachment is preceded by a petition, and the pe- tition contains all that is required to be sworn to, see Watts v. Harding, 5 Tex. 386; Burnamv.Romans, 2Busch. (Ky.) 191, and code states generally, see ante p. 189, note. 3. Lindner v. Aaron, 6 Miss. (5 How.) 581 ; Amos v. Allnutt, 10 Miss. (2 Sm. & M.) 215; Peters t?. Bower, Minor (Ala.) 69. If the objection is tenable it must be taken advantage of by a plea. Peters v. Bower, Minor (Ala.) 69; contra, Staples v. Fairchild, 3 N. Y. (3 Comst.) 41 ; Baldwin v. Neale, 10 Gill & .r. (Md.) 274. As to presump- tion that a partnership is within the state, see Renard v. Hargous, 2 Duer (N. Y.) 540. 208 THE AFFIDAVIT. §132 or that the contract was made in the state ; or that che cause of action arose therein ; and an amendment of the affidavit after the issuance of the writ will not suffice because matters going to the jurisdiction are prerequisite in all cases. ^ The ownership of the debt is a material part of the descrip- tion.^ An affidavit that the debt is ''on account of the steam- boat and owners," sufficiently shows that the debt is due in their capacity as owners, and not in their private and individ- ual capacity.^ And an affidavit for attachment, by speaking of the applicant as owning the demand " under assignment to F. H.," to whom the original creditor had assigned it, suffi- ciently describes his title.* In Georgia, an affidavit to sue out an attachment for pur- chase-money must so describe the property for which the debt was created and in possession of the debtor as to certify to the officer making the levy what property he is authorized to seize and sell.® It has been said that the same precision is not required by positively, and not simply to the best of the plaintiff's knowledge and be- lief. Affidavit " that to the best of deponent's knowledge and belief, the follovt^ing is a correct list and descrip- tion of the property for which said debt was created, to wit: four fancy 1. Adlerv. Order of American Fra- ternal Circle of Baltimore City, (Sup.) 19 N. Y. S. 885, 28 Abb. (N. Y.) N. C. 233; Oliver v. Walter Haywood Chair Manufg. Co., 10 N. Y. S. 771, 57 Hun (N. Y.) 588. 2. So where the return in an attach- ment showed that a specific debt at- tached owing from M to the old firm of D & D, it was held that it could not be applied to the new firm of D & D, a distinct partnership, although a surviving member of the old firm was a member of the new. Debts due a partnership are due to it only and not to an individual member thereof. Allisi;. Day, 13 Minn. 199. 3. Auter v. Steamboat, etc., 34 Miss. 269. 4. Hall V. Stryker, 27 N. Y. 596. 5. Waxelbaum v. Paschal, 64 Ga. 275. It must contain a description of the property for which the debt is created, and such description must be sworn to decanters, one vase," with a great number of other articles set forth in like manner, is not positive, and for that reason the attachment issued thereon was void, and was properly dismissed on motion. Bruce v. Con- yers, 54 Ga. 678. An affidavit upon which an attach- ment for purchase-money is based, which states that the defendant is in- debted to the plaintiff in the sum of $767.65, and that said indebtedness was created in part by the pur- chase of a one-half interest in cer- tain property specified, is insuffi- cient. It Should designate the amount due therefor. Camp v. Cahn, 53 Ga. 558. ■§ 132 NECESSAIIY AVERMENTS GENERALLY. 209 the courts in affidavits for the cause of action in attachment as in cases of capias.^ But nevertheless an affidavit for a writ of attacliment must allege positively and unequivocally the re- quirements of the statute/ though it need not run in the exact language of the statute, provided the requisite facts are clearly shown.' Nor need it state the probative facts out of which an indebtedness arose, but only the ultimate facts re- quired by the statutes.* In New York formerly, under the revised statutes, an affidavit which would have been sufficient under the non-imprisonment act was sufficient for an attach- ment.^ And under the code, the sufficiency of the affidavits on which an attachment issued is no longer a jurisdictional question, but a mere question of regularity in issuing the process, of which none but a party to the action can take ad- vantage.^ It is the proper averments in the affidavit which sustain the issuance of the writ, and, in Texas, it also determines the validity of the writ; for there can be in that state no traverse of the facts averred; the bond protects the defendant against the effect of falsehood.^ But in other states the rule is that although an affidavit contain the necessary averment of a cause of action, together with an averment of one of the speci- fied grounds for an attachment, will procure the issuance of the writ, it is not conclusive of the plaintiff's right to begin an action by an attachment;* for, while it is a sufficient pre- requisite to the issuing of the attachment, such attachment must be justified, not by the belief of the existence of a fact but by the fact of its existence.^ And the defendant may move to 1. Redwood v. Conseque, 2 Browne, 3. Crew v. McClung, 4 Green (la.) (Pa.) 78. 153. 2. Dyer v. Flint, 21 111. 80; Adams 4. Crawford v. Roberts, 8 Ore. 324. V. Merritt, 10 111. App. 275; Ricliter 5. Colverv.Van Yalen, 6 How. (N. V. Wise, 6 Thomp. & C. (N. Y.) 70; 3 Y.) Pr. 102. Hun (N. Y.) 398; Bennett v. Ed- 6. Matterof Griswold, 13 Barb. (N. wards, 27 Hun (N. Y.) 352; Edick v. Y.) Pr. 412. Green, 38 Hun (N. Y.) 202; Wilmer- 7. Dwyer v. Testard, 05 Tex. 432. ding V. Cunningham, 65 How. (N. 8. Kelley v. Force, 1(5 R. I. 628 Y.) Pr. 344. 18 Atl. Rep. 1037. 9. Sublett V. Wood, 76 Va. 318. Att. 14 210 THE AFFIDAVIT. § 132 have an attachment dismissed, and sustain his motion by proof of the non-existence of the grounds alleged in the affidavit/ Generally an affidavit for an attachment against joint debt- ors must show a cause therefor existing as to all, or an attach- ment will not be permitted against the property of alL^ And an affidavit for the attachment of the individual property of a copartner will be governed by the principles hereinbefore stated.' An attachment in behalf of a partnership made by one member of the firm will not be insufficient because the affida- vit itself does not state affiant's interest, if the other parts of the record show that he was in fact one of the partners.* But the rule may be otherwise in a state where omissions may not be corrected by reference to other parts of the record.^ It is not absolutely essential that all the averments neces- sary to be sworn to before the issuance of an attachment, should be made in one affidavit nor by one individual, pro- vided that necessary facts are all stated in the affidavits when taken together.^ The sufficiency of the affidavit can not be determined until the defendant appears and pleads,' or moves to have the at- 1. See post, § 326, "Dissolution of (Iowa) 532; Hamilton v. Knight, Attachment." (Ind.) 1 Blackf. 25. In Indiana the affidavit must show And under a statutory requirement that the property sought to be reached that the affidavit should state that the is subject to execution. Blair v. action was not brought to vex or har- Smith, 114 Ind. 114, 15 N. E. Rep. 817. rass the debtor, an attachment against But in Nebraska and North Carolina joint debtors will not be supported by it is not necessary that it should state an affidavit that it is not made to vex that the defendant has property or harrass the "defendant." Gunst within the jurisdiction of the court, v. Pelham, 74 Tex. 586. Grebe v. Jones, 15 Neb. 312; Parks v. 3. See ante, § 47, "Attachment of Adams, 18 S. E. Rep. 665, 113 N. C. 473. Partnership Property." In Virginia the affidavit is sufficient 4. Bosbyshell v. Emanuel, 20 Miss, if it states that he has property in any (12 Sm. & M.) 63. county in the state. Anderson ■;;. 5. Willis v. Lyman, 22 Tex. 268; Johnson, 32 Gratt. (Va.) 558. And as and snpra, § 129. to the affidavit for the attachment of 6. Edick v. Green, 38 Hun (N. Y.) law in Arkansas see Webster v. 202; Lewis v. Stev/art, 62 Tex. 352. Daniel, 14 S. W. Rep. 550, 47 Ark, See rtMosi;, §179. 9. Bradley v. Kroft, 19 Fed. Rep. 6. Briggs V. Smith, 13 Tex. 269. 295 ; Didier v. Galloway, 3 Ark. 501 ; 272 THE BOND. § 154 fore the bond is given, though it be given on the same day.' Such bond as is required by the statute is a prerequisite to the issuing of the writ, and where the bond offered is not such as is required by the statute, it is the same as though there was no bond. In either case a motion to dismiss is pertinent.^ The prescription of the law must be strictly observed under pain of nullity.' An attachment issuing without the aflEidavit and bond re- quired by the statute is void and the error can not be cured by the appearance and plea of the defendant.* The omission can not be waived so as to uphold the attachment f nor will the substitution of another bond cure the error,^ though such bond be filed before a motion to quash the writ is made.' The bond, Ford V. Woodward, 10 Miss. (2 Smed. & M.) 260; Lewis v. Butler, (Ky.) Sneed 246 ; Davis v. Marshall, 14 Barb. (N. Y.) 96. 1. Hucheson v. Ross, 2 A. K. Mar- shall (Ky.) 349. But a recital in the bond that the plaintiffs "have this day sued out an attachment," does not import that the bond was executed after the writ is- sued. Wright V. Eagland, 18 Tex. 289. 2. Bank of Alabama v. Fitzpatrick, 4 Humph. (Tenn.) 311. 3. Graham u.Burckhalter,2 La.Ann. 415. In Kentucky the bond must be exe- cuted before the clerk or his legally authorized deputy in his office, and unless such bond is given in the man- ner provided the attachment will be void. Home v. Mitchell, 7 Bush (Ky.) 131. In Kansas, in all cases where an order of attachment is issued, except where the defendant is a non-resident of the state, a foreign corporation, an attachment bond must be given by the plaintiff. When this is not done the attachment will be dissolved on mo- tion of the defendant. Ballinger v. Lantier, 15 Kan. 608. A North Carolina statute required not only that the defendant give bond and make affidavit, but that he see that they were returned. If he did not do this his attachment Avould fail. State Bank v. Hinton, 1 Dev. (N. C.) 397. In New York a justice of the peace has no authority to grant the writ unless there has been a strict compli- ance with the statutory provisions. Kelly V. Archer, 48 Barb. 68; Davis v. Marshall, 14 Barb. 96; Bennett v. Brown, 4 N. Y. (4 Comst.) 254. And if he does he becomes a trespasser, and he, as well as the party procuring it, will be liable as such. Barkelo v. Eandall, 4 Blackf . (Ind.) 476 ; Da^^s V. Marshall, 14 Barb. (N. Y) 96. 4. Tyson v. Hamer, 2 How. (Miss.) 669. 5. Houston V. Belcher, 12 Smed. & M. (Miss.) 514. 6. Houston V. Belcher, 12 Smedes & M. (Miss.) 514; Bradley v. Kroft, 19 Fed. Rep. 295. 7. Osborn v. Schiffer, 37 Tex. 434. § 154 WHEN THE BOND MUST BE EXECUTED AND FILED. 2<3 to support an attachment, must be filed before the writ is issued and can not afterwards be filed nunc pro tunc' Where, how- ever, a bond has been filed which is not absolutely void, but void'able only because of defects which are amendable by vir- tue of the statute, a subsequent good bond may be filed and ap- proved by way of amendment, and the proceeding will thereby become valid from the beginning.' While the issuance of the writ of attachment before the ex- ecution and filing of a bond is absolutely void, though a bond may be thereafter filed on the same day,* yet, where the bond bears even date with the writ, it will be presumed that the bond was taken and approved before the granting of the attachment, unless the contrary is made to appear.* But if the bond re- cites that the writ is previously issued and there is nothing upon the record to show to the contrary, the writ will be quashed.' If, hov/ever, the writ shows that it issued before the giving of the bond, the contrary recital of the bond will be no ground for motion to quash the writ.' Although it is ex- pressly prescribed in some statutes that the affidavit and bond must be made and filed on the day the writ is issued,' yet where no such statute exists it is reasonably held that a difference in 1. Stevenson v. Robbins, 5 Mo. 18. A recital does not make rt appear See Blake v. Sherman, 12 Minn. 420. that the writ issued first. ^\ right v. 2. McCraw v. Welch, 2 Col. T. 284 ; Ragland, 18 Tex. 289. vide Illinois Attachment Act. A recital that the suit was brought And see below a few states deem- in the commissioner s court at a time ing it only an amendable irregularity, before the court was in existence is And in a collateral suit, both the fatal. Bonner v. Brown, 10 La. Ann. original and amended bonds may be 334. o -d, i . received in evidence to show the reg- 6. Summers v. Glancey, 3 Blackf. ularity of the attachment proceed- (Ind.) 361 ; Reed v. Bank of Ken- ings. McCraw v. Welch, 2 Colo. T. tucky, 5 Blackf. (Ind.) 227. 2g4 But the recital of the bond can not S'. Hucheson v. Ross, 2 A. K. be contradicted by parol evkience Marshall (Ky.) 349. Reed v. Bank of Kentucky, o Blackf. 4. McKenzie v. Buchan, 1 Notts & (Ind.) 227. McCord (S. C.) 205. 7. See ante, § 128, When the Affi- 5. Root V. Monroe, 5 Blackf. (Ind.) davit to be Made." 594. See McClanahan v. Brack, 46 Miss. 246. Att. 18 274 THE BOND. § 154 the date of the affidavit and bond' is not ipso facto ground for dismissal of the attachment, and unless there are very strong features of injustice the propriety of the proceeding should be tested by plea in abatement, on the trial of which the question is whether the attachment was wrongfully sued out at the time of its issuance, and if the condition of things changed between the dates of the affidavit and the issuance of the writ.'' The failure of the plaintiff to file a bond is ground for a motion to quash the attachment, but it is no ground of demur- rer to the cause of action/ It has been said in Kentucky that, although the statute de- clares that an attachment without a bond is void, yet such statute is only directory.* When an attaching creditor in South Carolina or Ohio files a proper affidavit entitling him to an attachment, his failure to file the statutory undertaking for the indemnity of the defendant does not render the attach- ment void, for it is a mere irregularity, of which the defendant in attachment alone can take advantage." In Missouri and Iowa, when an attachment is sued out in vacation, the bond may be taken and approved by the sheriff after the issuance of the writ, if offered before he makes return thereon at the next 1. In this case the affidavit bearing was held that the second attachment date the 24th day of November, and was not an alias, but an original pro- the bond bearing date the 12th of De- ceeding, founded on a different cause cember following. from the former, and required a new 2. McClanahan v. Brack, 46 Miss. bond. Jeffries v. Dancey, 44 Miss. 246. 693. A mistake in the date of the year is 3. Alexander v. Pardue, 30 Ark. amendable. McClanahan v. Brack, 359. 46 Miss. 246. See post, ^ 179. See as 4. Banta v. Eeynolds, 3 B. Mon. to ancillary proceedings, Wheeler v. (Ky.) 80. Farmer, 38 Cal. 203. And that the process is prima facie An attachment was once issued on evidence of jurisdiction, and will pro- the ground that the defendant was tect the officer or party acting there- about to remove his property from the under. Banta v. Reynolds, 3 B. Mon. state. Some years afterwards the (Ky.) 80. same plaintiff made an affidavit and 5. WigfalliJ. Byne, 1 Rich. L. (S. C) set forth the pendency of the attach- 412. O'Farrell v. Stockman, 19 Ohio ment ; that the defendant had be- State 296. come a non-resident ; and prayed an How the advantage to be taken, alias writ, which was issued and levied see post, § 177. upon the defendant's real estate. It § 155 FORMAL REQUISITES OF THE BOND. 275 term of the court. ^ And in Missouri where an improper bond has been filed, a motion to dismiss will not be granted if the plaintiff offers to substitute a good and perfect one in its place, or does so by order of the court. ^ And in Minnesota, although a bond be not given before the attachment writ issues, it may- be given afterwards nunc pro tunc' §155. Formal requisites of the bond— (a) Generally. — Where a form of bond for attachment is prescribed by the statute it is the better practice always to follow such form. In fact in a few instances the form prescribed by the statute must be followed in order to give the court jurisdiction, and in those cases, if not followed, the proceeding, will of course, be void.* An attachment bond which literally follows the form pre- scribed by the statute is always sufficient.* However, the form prescribed by the statute need not literally follow the words of the enacting statute.® An immaterial variance from the pre- scribed form will not vitiate the bond. ''All bonds agreeing in substance with that prescribed in the act are valid."' Furthermore, the bond may vary from the statutory require- ment and still be a good common law bond,® provided it does not contravene public policy nor violate a statute.® And it may be stated as a general rule that where a prescribed form is not required to be followed absolutely, the plaintiff need not execute the bond prescribed by the statute if a bond good in 1. Stevenson v. Robbins, 5 Mo. 5. Proskey v. West, 16 Miss. (8 18 ; Budd v. Durall, 36 Iowa 315. Smedes & M.) 711 ; Love v. Fairfield, 2. McDonald v. Fist, 53 Mo. 343; 10 111. 303; Singleton v. Wofford, 4 Jasper County v. Chenault, 38 Mo. 357. 111. 576. The bond must be given with sure- 6. Amos». Allnutt, 2 Smedes & M. ties as required by the statute. A 215. bond by a plaintiff alone is a nullity. 7. O'Neal v. Owens, 1 Haywood (N. Jasper County v. Chenault, 38 Mo. 357. C.) 365. 3. Blake v. Sherman, 12 Minn. 420. 8. State v. Thompson, 49 Mo. 188; This is contrary to the general rule. Williams v. Coleman, 49 Mo. 325; See supra. Barnes v. Webster, 16 Mo. 258; Baird 4. Van Loon v. Lyons, 61 N. Y. 22; v. Walker, 12 Barb. (N. Y.) 298; Fox- Mclntyre v. White, 5 How. (Miss.) worth v. Burckhalter, 3 La. Ann. 365. 298 ; Bank of Alabama v. Fitzpatrick, 9. Sheppard v. Collins, 12 Iowa 570. 4 Humph. (Tenn.) 311. 276 THE BOND. §§156,157,158 form, for a sufficient amount and payable to the defendant, be executed by him or some one in his behalf, and the same be filed and approved.* And where no form is prescribed any bond will do, if the conditions be such that the plaintiff can be made to respond in damages to the defendant in the event of any illegal conduct on his part.^ § 156. (b) Title court. — The title of the court and the term to which the attachment is returnable should be men- tioned in the bond.' But a bond which literally follows the form prescribed by the statute is good, although it does not state in what court the proceedings are taken.* Where there was a literal transcript from the statute, and the blanks merely filled in, it was said: ''It must be an extraordinary case in- deed, when the court shall hold that a bond is insufficient to aTithorize the issuance of attachment which the attachment law itself says shall be sufficient."^ § 167. (c) Title cause. — The title of the cause may properly be mentioned in the bond, but if the bond does not show that it was given in any cause or that there was any cause pending, it is good.® The recital of the bond, however, should show who are the parties to the suit, or no liability can be fixed or action on the bond sustained.' § 158. (d) The date. — Where a common law bond is suffi- cient, the attachment bond need not be dated. A common law bond takes effect by delivery.* Where an error is made in the date of the year, it is amendable in Mississippi,® and in other states permitting amendments for informalities.*" And where 1. Mandel v. Peet, 18 Ark. 236. Tomlinson, 30 Ga. 540— and in other 2. Leach v. Thomas, 2 Nott & Mc- states where defects are amendable, Cord (S. C.) 110. see ijosi, §179. 3. Lawrence v. Yeatman, 3 111. (2 7. See post, § 161, "Eecital of Con- Scam.) 15. ditions." 4. Singleton v. Wofford, 4 III. 576. 8. Plumpton v. Cook, 2 A. K. Mar- 5. Love V. Fairfield, 10 111. (5 Gilm.) shall (Ky.) 450. 303. 9. McClanahan v. Brack, 46 Miss. 6. Janes v. Tomlinson, 30 Ga. 540. 246. And if it were not sufficient it could 10. See post, § 179. be amended, in Georgia — James v. § 159 THE SIGNING. 277 a mistake in the date is amendable the court will continue the case, to enable counsel to prove such mistake and to make an amendment.* § 159. (e) The signm«:. — Where the statutes require that a bond to support an attachment must be sigued by the plaintiff, or his agent, or attorney (and most states do so require), a bond signed by a person who is neither plaintiff, his agent, nor attorney, but a mere stranger, is not sufficient to sustain an attachment, and no suit on such bond can be maintained.* But under statutes which require a bond to be given " on tlie part of the plaintiff" with sureties before an attachment writ can issue, the plaintiff himself need not sign the bond.^ AVhere it is required that a bond be executed by the plaintiff, his agent, or attorney, prior to the issuance of the writ, such bond, when executed by such agent or attorney, may be, in form, his personal obligation, and may be executed by him in his own name, describing himself as such agent or attorney, and need not be executed in the name of or on behalf of his principal, the plaintiff.'* And when such bond is not in the name of such plaintiff, but is the personal obligation of his agent, no power authorizing its execution by the agent need be shown under seal.^ The signature to the bond may be amended if it is not lawful, even when it is the name of the plaintiff signed by the plaintiff's attorney, without authority.® When the authority of the agent to sign the bond is questioned, the production of a power of attorney, under private signature, at the trial of the exception, is no proof of its existence at the suing out of the attachment, even though it purport to bear the same date. But 1. Snelling v. Bryce, 41 Ga. 513. 4. Conklin v. Goldsmith, 5 Fla. 280; 2. Booker V.Smith, 38 8.0.228,16 S. Walhridge v. Spalding, 1 Doug. E. Rep. 774; Ford v. Hurd, 12 Miss. (Mich.) 451. (4Smed.& M.) 683; Meyers v. Rauch, 5. Walhridge v. Spalding, 1 Doug. 4 Pa. Dist. Rep. 333. (Mich.) 451. 3. Pierse v. Miles, 5 Mont. 549; 6. Anthanissen v. Brunswick & S. Langstaff v. Miles, 5 Mont. 554 ; Black A. Steam Towing and AVrecking Co., Hills Mercantile Co. v. Gardiner, (S. 92 Ga. 409, 17 S. E. Rep. 951 ; Anthan- D.) 58 N. W. Rep. 557, 559 ; Spragiie v. issen v. Dart, 92 Ga. 409, 17 S. E. Rep. Gardiner, (S. Dak.) 58 N. W. Rep. 951. 559 ; see post, § 169. 278 THE BOND. §§160,161 where the agent is examined as a witness, and establishes the date to be the same, it will prove its existence at that time/ The omission of the Christian name of the principal obligor in the body of an attachment bond becomes immaterial when he executes the same by his full name.^ The principal obligors in an attachment bond may sign it by their partnership name merely.* And it is no objection to an attachment bond, given by a firm whose individual names appear in the petition, that the bond refers in the body to the individuals, while it is signed by the firm name merely ; nor is it an objection that it was made payable to the individual members of the firm sued.* § 160. (f) The seal, — Generally, there can be neither a stat- utory nor common law bond without a seal. To be a bond it must be a sealed instrument. It must have a seal, or the word seal, or a scroll by way of a seal, or it will not support attach- ment, nor can it be sued on as a bond.^ In Texas, the statute dispensing with seals or scrolls to bonds, except those given by corporations, applies to attachment bonds.® And in Ohio, the undertaking required by the code is not a specialty, and a seal is not required.' No objection can be made to an attachment because of its having the condition written beneath the signatures and seals of the obligors.* § 161. Recitation of conditions — (a) Names of parties, etc. — The bond or undertaking on attachment is an original, in- dependent contract on the part of the sureties and must be 1. McCall V. Henderson, 11 La. Ann. The lack of a seal to the paper filed 209. as a bond is amendable. Lee v. Vail, 2. Walbridge v. Spalding, 1 Dougl. 3 111. 473. In states allowing amend- (Mich.) 451. ments of informalities of the bond 3. Claflin v. Hoover, 20 Mo. App. 314. see post, § 179. 4. Gray v. Steedman, 63 Tex. 95. 6. Bernhard v. De Forest, 36 Tex. 5. State V. Thompson, 49 Mo. 188 ; 518. State V. Chamberlin, 54 Mo. 338; 7. McLain v. Simington, 37 Ohio State V. Eldridge, 65 Mo. 584 ; Wallace, State 484. Elliott & Co. V. Plukart, 6 Pa. Co. 8. Melvin v. S. B. Gen. Shields, 15 Ct. R. 151 ; Lea v. Vail, 3 111. 473. Ark. 207. § IQl RECITATION OF CONDITIONS. 279 construed in connection with the statute which authorizes it.^ There must always be a substantial conformity with the pi;o- visions of the attachment act relating to the bond, or it will be insufficient and unavailing.^ It must be conditioned to prose- cute the suit with effect, or pay all costs and damages that may be recovered in any action that may be brought for the wrong- ful suing out of the attachment.^ And when no form is given by the statute, the bond must at least be so conditioned that the plaintiff can be made to respond in damages to the detend- ant for any illegal conduct on his part in the attachment pro- ceedings * If the statute requires the plaintiff's undertaking to be conditioned for the payment of all damages, an undertak- ing to answer for the ivrongfid suing out of the attachment is not a compliance with it.« When an attachment bond is signed by two plaintiffs in attachment, and the condition is expressed in the singular number, viz., -that he will pay all such damages and costs as shall be adjudged against l^^i /o^ wrongfully suing out the attachment," the same is insufficient and the attachment should be quashed.^ Therefore, m a case where the bond taken was the bond of one of the partners, with surety, reciting that such partner had obtained the at- tachment, and conditioned that if he should not prevail m the suit, then he would pay all costs and damages which should be recovered against him, it was held that such bond was not good and that the attachment was therefore illegal and void. And where the provisions of the attachment act required a bond as one of the conditions to the issuing of the writ, it will not be satisfied by the execution of a covenant to pay one hun- 1. Frankel v. Stern, 44 Cal. 168. the obligor shall pay such daiBages 2. Ilisler .. Carr, 34 Cal 641 ; O'Neal whether the suit as P^o^.^;;-^^^^^^^^^^ V Owens, 1 Hayw. (N. C.) 365; State effect or not. Lucky v. Miller, SYerg. V. Thompson, 49 Mo. 188; Baird v. (Tenn.) 90. Walker, 12 Barb. (N. Y.) 298; Fox- 4. Leach v. Thomas, 2 Nott & Mc worth V. Burckhalter, 3 La. Ann. 365 ; Cord (S. C) 110. Baars .. Gordon, 21 Fla. 25 ; Kahn .. 5. Pierse .. Males, ^ i^.«-J^-f \ Herman, 3 Ga. 266. 6. Sohnsky .. Young, (Tex. App.) 3. Lucky V. Miller, 8 Yerg. (Tenn.) 17 S. W. Kep. 1083. •^ 7 . Jones v . Anderson , 7 Leagh ( V a. ) But no condition is necessary that 308. 280 THE BOND. § 161 dred dollars, or to pay the damages and costs, etc.; and where only such a covenant is executed, the officer does not acquire any jurisdiction to issue an attachment.* Under a Georgia statute requiring that the bond be conditioned to pay all costs in case the plaintiff shall discontinue or be cast in his suit, and also all damages which may be recovered for suing out the attachment, a bond was given containing these conditions and the further condition "that the plaintiff should prosecute his suit with effect," and it was held that the bond was in sub- stantial conformity with the statute.^ A bond drawn to certain parties, without describing them as the defendants (though they w^ere such in fact), and reciting that it was upon condition that the plaintiffs should *'pay to the defendants all such dam ages," etc., without stating who the defendants were, waa, not sufficient under a Texas statute which required that it fehall be payable to the defendants in the action.' Any condition in the bond beyond that which is required by the attachment law is void, but if a bond otherwise sufficient contain such further condition, the bond will not be voided by such condition. It will be good to the extent of its legal con- ditions, and any further condition or covenant will be treated as surplusage.* And the unnecessary condition will not bind the surety.^ But where the plaintiff gives a bond to prosecute the ''action" with effect, instead of the "attachment," as re- quired by the attachment act, the bond will be fatally defective and the attachment must be quashed.*' In many states it is held that, although the bond given does not contain all of the statutory conditions, it may be a good bond as to the conditions which it does contain,' and may be a valid contract between the parties at common law.® A mis- recital in the bond, of the return term of the writ, will not give 1. Homan v. Brinckerhoff, 1 Den. 372; Johnson «. Imboden, 7 La. Aan, (N. Y.) 184. 110. 2. Kahn v. Herman, 3 Ga. 266. 6. Starbird v. Koonse, (Pa. Com. 3. Rohrbough v. Leopold, 68 Tex. PL) 10 Pa. Co. Ct. Rep. 449. 254, 4 S. W. Rep. 460. 7. State v. Berry, 12 Mo. 376. 4. Ranning v. Reeves, 2 Tenn. Ch. 8. Emanuel v. Laughlin, 11 Miss. 263. (3 Smedes & M.) 342. 5 Baker v. Morrison, 4 La. Ann. § 161 "recitation of conditions. 281 ground to quash the attachment, nor affect the validity of the bond.^ A bond setting out the names of the individuals com- posing the plaintiff firm, and conditioned "that the above- named" firm, "plaintiffs in attachment against said" defend- ants, "will prosecute," etc., will be good and effective, though the names of all the individuals who compose the plaintiff firm be not repeated in the latter part of the bond ; and every member of the firm will be bound thereby.^ Nor will the omission of the name of the surety, in the recitation, affect either the validity of the undertaking or the allegation of the surety/ And though a bond will be defective if it does not describe the parties to the suit,* yet where the wrong name is used in the recitation it will be sufficient, if from the text of the bond there can be no doubt of the person intended. The court will look to the w^iole instrument and thereby determine, if possible, who is the party intended.' Where a word is omitted by mistake in an attachment bond, when by examining it and the statute authorizing it the in- tended word can be determined, the omitted word may be sup- plied and the contract read as if it had been expressed.* 1. Houston V. Belcher, 20 Miss. (12 ment attached the assigned property. Smedes & M.) 514. The assignee, to further the disposal 2. Munzenheimer V. Manhattan of the property, executed an obliga- Cloak and Suit Co., 15 S. W. Rep. 389, tion in favor of the attaching creditor 79 Tex. 318. containing the conditions that if the 3. McLain v. Simington, 37 Ohio attachment was not sustained, or if St. 484; Baarsu. Gordon, 21 Fla. 25. sustained and a "judgment" should 4. Schrimph v. McArdle, 13 Tex. not be satisfied within thirty days by 368. him (the assignee) , the bond should be ■ 5. Affeld V. The People, 12 111. App. void. The bond concluded with these 502. words, "it is understood that, by judg- 6. Frankel v. Stern, 44 Cal. 168 ; ment is meant final judgment, and following People v. Judges of Oneida, that the said assignee will, in fulfill- 1 Wend. (N. Y.) 28. ment of this obligation, pay any judg- The following is given as an exam- ment which may be rendered in the pie of a casein which the word "and" attachment suit aforesaid against said was supplied by the court and read in debtor or against himself as assignee." the place where the word "or" was Such correction was made because it written in the bond : . was deemed that reference was in- A debtor assigned his property for tended to be had to such judgments the benefit of certain creditors. A only as would bind the attached prop* creditor not included in such assign- 282 THE BOND. §§162,163 Rule regarding omissions in attachment bonds: — It must be remembered that the principle that judicial bonds are to be construed according to the law under which they are given, in regard to the rejection of surplusage and supplying omissions, does not apply when the question is not what the eventual liability of parties will be to such bonds after they have accom- plished their purpose, but when the question is whether the conditions precedent prescribed by law and essential to the maintenance of the attachment have been strictly complied with. Such compliance is jurisdictional and can not be affected by presumptions and implications, nor by collateral evidence.^ § 162. (b) Must show whose and what property attached. — The recital in an attachment bond should indicate unmistak- ably, and without the aid of extraneous proof, what or whose property is to be attached, so that the party aggrieved by the execution of the writ may have his recourse upon the bond and surety thereto without resorting to other methods of con- necting the one with the other. ^ § 163. Amount or penalty of the bond.— The undertaking being given for the indemnity of the defendant against any loss which he may sustain by reason of the wrongful suing of the attachment, it is manifestly necessary that a penalty be named therein. A bond being required by the statute, no ju- risdiction will be obtained by the court in which the proceed- ings are sought to be begun, unless a complete and valid bond be executed and filed. The statement of a penalty is an essen- tial element of a valid bond.^ Furthermore, if the bond is si- lent as to the penalty, the defendant in attachment can have no action thereon in the event of his being damaged because of erty. Hardcastle v. Hickman, 26 Mo. quash. Kramer v. Wellendorff, (Pa.) 475. 10 Atl. Eep. 892. Since irregularities in the formot 1. Lehman «. Broussard, 45 La. Ann. the condition in the bond or in the 346, 12 So. Rep. 504. number of sureties, do not go to the 2. Han v. Ruse, 35 La. Ann. 725. jurisdiction, they can not avoid a judg- 3. Lehman v. Broussard, 45 La. Ann. ment obtained without a motion to 346, 12 So. Rep. 504. § 163 AMOUNT OR PENALTY OF THE BOND. 283 the wrongful issuing of so harsh a process.^ While the amount of the demand need not be named, because the sufficiency of the bond may be tested by comparing it with the affidavit/ yet it is evident that the amount in litigation, as stated in the affi- davit, should be the basis of calculation in determining what the penalty shall be for a wrongful resort to the action. A less amount could not compensate the defendant, should suffi- cient of his property be seized to satisfy the demand, and such bond would be wholly inadequate.' Every statute makes this a foundation to be used in determining tlie amount for which the bond shall be given. Some require that the bond exceed the demand by one-half, others that it be double the amount for the recovery of which the action is brought, etc. There being little uniformity in this regard, the statute of the state in which the action is to be brought must be consulted to as- certain how to estimate the amount of the indemnity to be given in such case, and the rule it lays down must be strictly followed in the computation.* For a bond in less than such amount will be utterly void.^ But although given for more than the required amount, it is nevertheless sufficient.' The amount of the demand named in the affidavit, for the recovery of which the attachment is sued out, need not be 1 Copeland v. Cunningham, 63 Ala. 6. Tanner & D. E. Co. v. Hall, 22 394; Louisville, N. A. & C. Ry. Co. Fla. 391; Bourne v. Hocker, 11 B. V. Lake, 5 Ind. App. 450, 32 N. E. Mon. (Ky.) 23; Lawrence ^. Feather- j^gp 59o_ ston, 18 I\Iiss. (10 Smedes & M.) 345; 2 Strong v. Lake Wier C. & L. Ass., Hibbs v. Blair, 14 Pa. St. 413. 25 Fla. 765, 6 So. Rep. 882. Where the amount of the penalty 3 Samuel v. Brite, 3 A. K. Marshal named in the bond is less than that (Ky ) 317 • Willman v. Freidman, required by the statute, the defect can (Idaho) 35'pac. Rep. 37. not be cured by amendment, and the 4 Saulter v. Butler, 10 Ga. 510; attachment should be dissolved on Shocklev V. Davis, 17 Ga. 175; Mar- motion of the defendant, although the nine v ^Murphy, 8 Ind. 272; Hamill assets of the defendant have been V Phenicie,9Iowa525 ; Erwin v. Com. placed in the hands of a receiver after & R R Bank, 12 Rob. (La.) 227; the levy, to be by him administered Miller V. Chandler. 29 La. Ann. 88; for the benefit of all creditors, and Brown i^.Whiteford, 4 Rich.(S.C.) 327. the result of quashing the attachment 5 Hamble v. Owen, 20 Iowa 70; would be to benefit other attaching Martin ^.Thompson, 3 Bibb (Ky .) 252 ; creditors, because of the statute pro- Griffith V. Milwaukee Harvester Co., viding that an attachment issued (Iowa) 61 N. W. Rep. 243. 284 THE BOND. § 164 mentioned in the bond ; but the bond being otherwise suffi- cient, such mention will not invalidate it.* § 164. (a) Interest to be included, when. — When a specific amount of interest is claimed by the affidavit in addition to the debt, the amount of the "sum of the demand" is the proper basis of calculation for determining the amount of the penalty to be named in the bond.' And when the plaintiff claims a certain sum with the interest at a certain rate, a bond in an amount based upon the principal exclusive of the interest is insufficient in Kentucky. It prevents the plaintiff from his al- lowance of interest on the trial." And in Louisiana it is fatal to the attachment, as it can not be cured by subsequently fur- nishing a bond for a sufficient amount.* The amount must be based upon the sum of the principal and interest accrued to the date of the filing of the petition or affidavit.^ But where a certain sum is claimed, with interest, and neither its rate nor the time from which it ran is specified, the claim for interest may be disregarded in fixing the amount of the bond.® It will be good for the amount, but not for the interest.' Under a statute which requires the bond to be double the amount of the demand, it was said that if the action is "debt" and the damages only nominal, the bond should be for double the amount of the debt only ; but if the action is "assumpsit," and the damages are laid to cover interest, then the bond should be for double the amount of both the debt and damages." without affidavit and bond, as therein an insufficient bond are not affected provided, shall be abated on motion by the fact that the amount of an at- of the defendant. East & AVest Texas tachment bond was fixed by an order Lumber Co. v. Warren, 14 S. W. Rep. of a judge, granting the attachment. 783, 78 Tex. 318. Fleitas v. Cockrem, 101 U. S. 301. 1. Bourne v. Hocker, 11 B. Mon. 5. Erwin v. Commercial Bank, 12 (Ky.)23; Strong v. Lake Wier C. & L. Rob. (La.) 227. Ass'n, 25 Fla. 765, 6 So. Rep. 882. 6. Planters' Bank v. Byrne, 3 La. 2. Gallaghers. Cogswell, 11 Fla. 127. Ann. 687; Pope v. Hunter, 13 La. 3. McDaniel v. Sappington, Hard. 306. (Ky.) 94. 7. Fellows v. Dickens, 5 La. Ann. 4. Graham v. Burckhalter, 2 La. 131. Ann. 415; Planters' Bank v. Byrne, 3 8. Brown v. Whiteford, 4 Rich. L. La. Ann. 687. (S. C.) 327. Subsequent proceedings because of TTTien to cover costs. Where an at- ^§ 165, 166, 167 TO INCREASE THE AMOUNT. § 165 ( b ) Application of the rule de minimis non curat lex. -In a state where a defect in the amount named in the bond can not be cured by subsequently furnishing a bond m a sufh- cient amount,^ it was held that when the bond is only defect- ive in being less than one dollar under the amount it should have been, the rule de minimis non curat lex applies/ But where the bond given by the plaintiff, though for $5,000 jet " $57 of the amount it should have named, it was held that he could not invoke the rule de minimis, and the attachment must be set aside/ § 166 ( c ) Order of court to increase the amount.— In Kan- sas where a defect in the undertaking is not fatal unless the plaintiff refuses to furnish a sufficient one within such time as the court may direct, it has been held that if the defendant thinks the penalty too small his remedy is to apply to the court to order increased security; and not to move to vacate the at- tachment.* § 167 Parties to the bond-Generally-C a ) Obligors.-The purpose of the undertaking being to bind the plaintiff m the attachment to indemnify the defendant for any damage he may sustain by the wrongful issuing of the writ, it is self-evident that the plaintiff in the action and his sureties should be named as the obligors, and that the defendant or defendants should be named as obligees in the bond. This wall lay a proper foundation for a subsequent action on the bond, should dama-e result to the defendant from the attachment. Con- fusion and miscarriage of justice will be avoided by proper recital in the bond of the names of the parties in the suit. It has been well said that the declaration, the affidavit, the bond, tachment is not original, but is issued 2. Bodet .. Nibourel, 25 La. Ann. in aid of a pending action, the costs 499. , „, t a ag7 o^ such action do not come within the 3. Yale .. Cole, 31 La. Ann 687^ obi gSon of the attachment bond. 4. Gapen .. Stephenson, 18 Kan PackerrPhillips, 33 111. App. 120. 140. See further as to ''Amendment,' 1. Graham v. Burckhalter, 2 La. post, § 179. Ann. 415 ; Planter's Bank v. Byrne, 3 La. Ann. 687. 286 THE BOND. § 168 the writ, the judgment and the execution must not vary in the description of the parties.^ And as a general proposition this is true. The exceptions to the rule will be made presently to appear. § 168. (b) Obligees. — The attachment bond should be made for the benefit of the party against whom the writ is to be issued.^ In general, the covenant in the bond runs directly to the defendant, though it is said in California that the under- taking may well be to the state, and that it will then inure to the benefit of the defendant," and in Pennsylvania it must be payable to the commonwealth for the use of the defendant.* But in Maryland, though the statutes prescribe that a bond shall be made payable to the state, yet where it is erroneously made payable to defendant he can maintain a suit thereupon if the attachment is dismissed,® If there is only one defendant against whom the debt is al- leged, and on whose property alone an attachment is sought, the bond should be made payable to him alone.® Therefore, when a seizure of the property of one member of a firm only is sought, a bond payable to the firm will not be good.' The general rule is that the defendant can alone sue on the bond, but where the attachment is made to issue against spe- cific property, the defendant in the attachment, or the owner of such specific property, can sue on the bond.^ In any event the benefits of the covenants of the bond do not inure to third persons.^ And a condition to pay all damages "sustained by any person by reason of their suing out said order of attachment" will not inure to the benefit of the sheriff who levied the attach- ment/" The bond inures to the benefit of each and every defendant 1. Bennett v. Zabriski, 2 N. Mex. 7. Courrier v. Cleghorn, 3 Greene 176. (Iowa) 523. 2. Courrier v. Cleghorn, 3 Greene 8. Davis w. Commonwealth, 13 Gratt. (Iowa) 523. (Va.) 139. See further as to "Action 3. Taaffe v. Rosenthal, 7 Cal. 514. on the Bond," post, § 182. 4. Wallace, Elliott & Co. v. Plukart, 9. Edwards v. Turner, 6 Rob. (La.) 6 Pa. Co. Ct. 151. 382. 5. McLuckie v. Williams, 68 Md. 10. Mitchell t?.Chancellor,14W.Va. 262, 12 Atl. Rep. 1. 22. 6. Branshaw v. Tinsley, 23 S. W. Rep. 184, 4 Tex. Civ. App. 131. § 169 PLAINTIFF EXECUTING THE BOND. 287 aggrieved by the suing out of the attachment. If they have a common interest, as in a case of partners, the benefits will ac- crue to all of them. On the other hand, if but one of several defendants is in fact injured, it is equally clear that he alone can recover.* Such obligees as may be damaged may recover on the covenants without joining the others.* And where an attachment bond is executed to several obligees, with a condi- tion to pay them such damages as they may sustain because of the wrongful suing out of the attachment, then all the obligees may join in an action on the bond, although the attachment was levied on the individual property of only one of them.' Where a suit is brought against a firm in the firm name, without naming the individual members thereof, a bond made payable to the individuals composing the firm without naming the firm is void.* § 169. ( c ) Plaintiff executing the bond as principal obligor. — While it is manifestly proper that the plaintiff in the action should execute the bond as the principal obligor, yet if the bond be signed by sufficient sureties alone, it will generally be good without the signature of the plaintiff in the action.^ A good and sufficient bond executed by others, payable to the defendant and approved by the clerk, will be sufficient to sus- tain the attachment, although it be not signed by the plaintiff.* 1. Renkert v. Elliott,llLea(Tenn.) But the words "on the part of the 235; Hadley t7. Bryars, 58 Ala. 139; plaintiff," as used in the South Car- Voorheis v. Eiting, (Ky. ) 22 S. "W. olina code, which provides that the Rep. 80. officer, before issuing the attach- 2. Alexander v. Jacoby, 23 Ohio ment, "shall require a written under- State 358. taking on the part of the plaintiff, 3. Sloan v. Langert, 6 Wash. 26, 32 with sufficient surety," mean that the Pac. Rep. 1015; Boyd v. Martin, 10 obligation must be executed by the Ala. 700. See further as to "Action plaintiff, or his authorized agent, and on the Bond," post, § 182. a bond executed by a third person that 4. Birdsong v. McLaren, 8 Ga. 521. the plaintiff will pay, is insufficient. 5. Taylor v. Ricards, 9 Ark. 378; It must be the bond of the individual. Howard t\ Manderfield, 31 Minn. 337; National Exchange Bank w. Stelling, Eckman v. Hammond, 27 Neb. 611, 31 S. C. 360, 9 S. E, Rep. 1028. 43 N. W. Rep. 397. 6. Mandel v. Peet, 18 Ark. 236; see ante, § 159. 288 THE BOND. § 170 The sureties, by executing the bond, and the jDlaintiff, by invok- ing the writ only, all become liable to actual damages occa- sioned by the wrongful issuing of the writ.^ But if a bond be given by an entire stranger, no action can be sustained thereon. ^ § 170. (d) Ag:ent or attorney executing the bond in plaint- ifi's name as principal obligor.— When the plaintiff in the at- tachment suit is not absent, he should always sign the bond in person. In fact, under the South Carolina act of 1799 no other person was authorized to execute the bond.^ It may now be executed by an agent ''on the part of the plaintiff."* And in Virginia in 1796 it was said that the bond ought to be given by the plaintiff himself.^ But later it was said that where the bond was signed by the plaintiff by his attorney in fact, it would not be dissolved on motion; that if he had no authority the lack of it could only be questioned by plea in abatement.® The rule has since so far relaxed as to permit us to say that in general it is not necessary that the plaintiff sign the bond. It may be signed by his agent or attorney describing himself as such or not.' However, in Florida a power of attorney, under seal, is re- quired to authorize an agent to execute a bond in the name of the principal.* And in Louisiana the power of the agent to sign the bond must be special;^ and where no authority is shown, other than that he was the attorney for the plaintiff in another state, the attachment will be dismissed." But again it 1. State V. Fortinberry, 54 IMiss. 316. 4. National Exchange Bank v. Stel- A board of supervisors can give a ling, 31 S. C. 360, 9 S. E. Rep. 1028. bond and sue in attachment on behalf 5. Mantz v. Hendley , 2 Hen. & Munf . of a county. State v. Fortinberry, 54 (Va.) 308. Miss. 316. And the bond may be 6. Tingle v. Brison, 14 TV. Ya. 295. good, even though it does not bind the 7. Messner v. Lewis, 20 Tex. 221. county. States?. Fortinberry, 54 Miss. S.Forbes v. Porter, 25 Fla. 362, 6 316. So. Rep. 62. 2. See anfe,§169,"Signingthe Bond." 9. Grove v. Harvey, 12 Rob. (La.) 3. Myers v. Lewis, 1 McMull Law 221. {S. C.)54. 10. Wetmore V. Daffin, 5 La. Ann. 496. § 170 AGENT OR ATTORNEY EXECUTING THE BOND. 289 is said that the attorney is presumed to be the attorney in fact for the collection of the debt, and that a ratification of the authority is tantamount to original authority.^ And that after having received the service of an attorney for a number of years in other matters, the authority of the attorney to bring attachment and give a bond therefor can not be denied by the client.^ And again that silence for eight years is a ratification of the authority of the attorney/ In Mississippi it was early said that the authority of the agent to sign the bond need not accompany the bond, and that it would be presumed that the authority was shown to the offi- cer who granted the writ.* Later it was said that a bond by the agent of the plaintiff complies with the requirements of the statute as substantially as if it had been given by the plaintiff himself.^ And now the rule is that a bond valid on its face is sufficient, because the court can not look beyond the facts of the bond for the authority of the party who executed it.® In Maine, though a bond may be executed by an attorney w^io has no authority so to do, it may be rendered valid by a subsequent ratification, and the prosecution of the suit thus begun will be such a ratification.' A judge of the United States Circuit Court sitting in Maine has said that the plaint- iff's attorney has implied authority to do all acts which the in- terests of his client may require.* The general rule may be said to be that where the name of the plaintiff in the suit is signed to the bond by his attorney or agent, it will be presumed in the appellate court (no showing having been made to the contrary in the court below ) that it was made to appear to the lower court that he had authority to 1. Trowbridge v. Weir, 6 La. Ann. 5. Frost v. Cook, 8 Miss. (7 How.) 706. 357. 2. Mason v. Stewart, 6 La. Ann. 6. Spear v. King, 6 Smedes A M. 736. (Miss.) 276. 3. Brooks v. Poirier, 10 La. Ann. 7. Narraguagus v. Wentworth, 36 512. Me. 339. 4. Lindner v. Aaron, (Miss.) 5 8. Pierce v. Strickland, 2 Story (U. How. 581. S.) 292. Att. 19 290 THE BOND. § 170 sign.* And that when a non-resident plaintiff's attorney exe- cutes a bond in attachment, it will be presumed that he did not transcend liis authority.^ When the bond has been executed by one as agent for the plaintiff, it is always competent for the defendant to deny the right of the agent to execute it.* And if the undertaking has been executed by the agent without authority it will be quashed.* The objection to the execution of the bond by the agent, because of lack of authority so to do, should, it seems, be raised by plea in abatement and not by motion to quash. ^ For on motion to quash, everything on the face of the bond will be taken as true, including the admission of the authority of the agent or attorney to execute it.® The averment of the defend- ant that the bond has been executed without authority is neg- atived by the appearance and prosecution of the suit by the plaintiff.' If the bond is in due form and the principal ap- pears and prosecutes the action sued out by the agent for his benefit, it is a recognition of the authority of the agent to begin the suit and execute the bond.* Where an agent signs a bond "for J. H., J. R. & J. W." it will be sufficient, although only one seal is affixed; and it can not be construed to be the individual bond of the agent. ^ When one person executes a bond "for the purpose of" an- other, the usee is the real principal." 1. Goddard v. Cunningham, 6 la. sureties. On motion to quash the at- 400; Lindner tJ. Aaron, 5 How. (Miss.) tachment another bond may be filed. 681. Whitman Agricultural Ass'n v. Na- 2. Schoregge v. Gordon, 29 Minn, tional Ry. E. & I. Ass'n, 45 Mo. App. 367. 90. But in some states a bond in the 5 Messner v. Hutchins, 17 Tex. name of the plaintiff, signed by his 597; Alford v. Johnson, 9 Porter 320; attorney in the case, will be defective Tingle v. Brison, 14 W. Va. 295. where there is no apparent authority. 6. Wright ii. Smith, 19 Tex. 297. Harrisburg Boot and Shoe Co. v. 7. Dove v. Martin, 23 Miss. 588. Johnson, (Pa. Com. PI.) 3 Pa. Dist. 8. Bank of Augusta v. Conrey, 28 R. 433. Miss. 667. 3. Dove V. Martin, 23 Miss. 588. 9. Martin 'v. Dortch, 1 Stew. (Ala.) 4. Reiser v. Cushman, 13 Tex. 390. 479. A bond signed by the plaintiff's at- 10. Grand Gulf R., etc., Co. v. Conger, torney without authority will not in 9 Smedes & M. (Miss.) 505. Missouri be a nullity where signed by § 171 AGENT EXECUTING AN INDIVIDUAL BOND. 291 § 171. (e) Atjeiit or attorney executing an individual bond as principal obligor. — A bond by an agent in his character as agent, in which he professes to bind himself and not his prin- cipal, is a sufficient compliance with the statute generally; provided it also have sufficient sureties.' And a bond by an attorney at law in his own name, binding himself and not his principal, will be good if signed by two sufficient sureties.^ A person who voluntarily gives a bond need not produce a spe- cial power of attorney to bind himself, and an attorney author- ized to bring an action may give his own bond, styling him- self as agent, and this will justify the clerk in signing the writ, if the sureties be sufficient.' It may be well to call attention to the fact that, although the sufficiency of the sureties may be a matter left with the clerk, yet the legal validity of the bond is a subject of review.* An officer of a municipal corporation may execute his per- sonal bond in a suit in attachment in behalf of such municipal corporation. A board of supervisors can give an attachment bond for their county; and a bond executed by individual members of the board as sureties may be good even though it may not bind the county. And a bond in the name of the board, by its retained attorney, will be sufficient if authorized or ratified and adopted by an order on the minutes, provided, of course, that there be sufficient sureties on such bond.* Where an attachment suit was begun in behalf of the trustees of a town, and one of the trustees executed the bond in his in- dividual name purporting to bind himself personally, but con- taining the condition that suit would be prosecuted by the trustees, the bond was held to be sufficient to sustain the at- tachment.® 1. Conklin v. Goldsmith, 5 Fla. 280; bond, it seems, is void and not subject Stewart v. Katz, 30 Md. 334 ; Page v. to amendment. Work v. Titus, 12 Fla. Ford, 10 Miss. (2 Smedes & M.) 266. 628. 2. Simpson v. Knight, 12 Fla. 144; 3. Dillon tj. Watkins, 2 Speers (S. Wood V. Squires, 28 Mo. 528 ; Beards- C.) 445. lee V. Morgan, 29 Mo. 471 ; Henderson 4. Stewart v. Katz, 30 Md. 334. V. Drace, 30 Mo. 358. 5. State v. Fortinberry, 54 Mi.ss. 316. But the execution of a bond by the 6. Clanton v. Laird, 20 Miss. (12 party who made the affidavit as agent Smedes & M.) 568. and who is not so designated in the 292 THE BOND. § 172 § 172. (f) Use of partnership name in executing the bond. — The rule in Florida is stated to be that where a bond of at- tachment by a copartnership is signed and sealed in the firm name by one member of the firm, who has been authorized by parol, or whose action is ratified by parol by the other, the bond will be good as to both.^ Georgia says that if one mem- ber of a partnership sign the partnership name as surety, when the other is present and consents and afterward ratifies the act under seal, the court will be *' strongly inclined to the opinion that it is good;" and further that the partner is entitled to amend, though the bond were already binding upon him.^ Iowa states that, although it is not proper that the attachment bond should be given by sureties in the firm name, yet where the sureties of the bond thereafter prosecute the suit, as the at- torneys for the plaintiff, the attachment would not be dissolved, although the bond was signed by the sureties in the partner- ship name.^ And again, where a bond for attachment was signed by the principal and sureties in their partnership name, it was said to be sufficient.* Texas avers that where the bond is given in the partnership name, it will be presumed that the officer who took the bond satisfied himself that the principal who signed the firm name had authority so to do;" that it is no objection to the bond that the individual members are de- scribed in the bond, and that it is signed in the firm name;® that a partnership may sign as principal in the firm name, and furthermore, that the name of the business firm signed to the bond by an agent will support attachment.' And that if the suit be brought against a firm in the firm name, a bond made payable to the firm in its partnership name will be good.* Missouri says the principal obligors may sign the bond in the partner- ship name merely.^ Mississippi permits one member of the 1. Jeffreys v. Coleman, 20 Fla. 536. 6. Gray v. Steedman, 63 Tex. 95. 2. Cunningham v. Lamar, 51 Ga. 7. Munzesheimerv. Heinze, 74Tex. 574. See, also, Dow v. Smith, 8 Ga. 551. 254, 11 S. W. Rep. 1094. 3. Danforth v. Carter, 1 Iowa 546. 8. De Caussey v. Baily, 57 Tex. 665. 4. Churchill v. FuUiam, 8 Iowa 45. 9. Claflin v. Hoover, 20 Mo. App. 5. Donnelly v. Elser, 69 Tex. 282, 314. 6 S. W. Rep. 563. § 173 THE SURETIES ON THE BOND. 293 firm who brings an action for the firm to execute a bond by himself alone and thereby bind the firm/ Virginia has per- mitted one member of a mercantile house to make a bond con- ditioned that he and sureties would pay all costs, etc., that may be adjudged to "him," and to support an attachment thereon in behalf of the firm.^ But on the contrary it has been said that a bond given by F, one of the members of a firm, with sure- ties, reciting that F has obtained an attachment on condition that if "he" shall be cast in the suit, "he" shall pay all dam- ages which shall be recovered against "him," was void and would not support attachment.' Maryland has said that where the firm name was signed, and it was not made to appear by whom it had been signed, that the firm name might be treated as surplusage, the sureties to the bond held, and the attach- ment sustained.* While in Illinois, in an attachment sued out by one person "for the use of" two others in their firm name on the bond by one of the firm and sufiicient sureties, contain- ing proper recitals concerning the recovery of the judgment, was deemed to be sufficient.' § 173. (g) The sureties on the bond— Generally.— For the better indemnification of the defendant in the attachment against any loss which he may sustain because of the wrong- ful suing out of the writ, all states require that the undertak- ing shall be, in addition to the undertaking of the plaintiff, also the undertaking of sufficient surety or sureties. An at- tachment begun without surety is generally void, and the pro- ceedings will be set aside.® 1. AVallis V. Wallace, 6 How. (Miss.) peace, providingthat before an attach- 2^'*- merit shall issue the plaintiff, or some 2. Kyle v. Connelly, 3 Leigh (Va.) one in his behalf, shall execute a bond ''■^^- with good and sufficient sureties, a 3. Jones v. Anderson, 7 Leigh bond with more than one surety is (Va.) 308. necessary, and a bond, deficient in 4. Gable v. Brooks, 48 Md. 108. that respect, can not be amended 5. Love V. Fairfield, 10 111. 303. at the trial by adding another surety. 6. Ford V. Rogers, 12 Rich. Law (S. Spettigue v. kutton, (Pa. Com. Pl.)'9 C') ^^^- Pa. Co. Ct. Rep. 156. As to General Under the Pennsylvania statute re- Attachment Bond, see § 72, code of lating to attachment by justices of the 1883. 294 THE BOND. § 174 The undertaking is an original independent contract on the part of the sureties, and must be construed in connection with the statute which authorizes it.^ The surety is no party to the original action.^ The statute usually prescribes the character of the party who will be a sufficient surety as, that he shall be a ''freeholder," a householder, etc. It sometimes requires that they be two or more in number, and sometimes the word "sureties" only is used in the plural form. Under the con- struction of the Iowa statute requiring "sureties," one single surety will satisfy the statute if he be otherwise good and suffi- cient.' And though a bond executed by the principal and one surety is generally defective, it may usually be amended.* It is such defect as will be waived by appearance and answer.' Nor will it be fatal to the judgment in attachment in a col- lateral suit on the claimant's bond.* It seems not to be necessary to the fixing of the liability of the surety that his name should be recited in the body of the undertaking.' Nor is it necessary that their signatures should be beneath the written conditions, for no valid objection can be made because of the fact, when their "signs"* and seals are placed above the conditions.^ § 174. (h) Who may be a surety on the bond. — In some states certain classes of persons, such as attorneys and coun- In Missouri a bond executed by the 4. McDonald v. Fist, 53 Mo. 343. plaintiff alone, with no sureties, is 5. Bryant v. Hendee, 40 Mich. 543. not a nullity. An application should 6. Atkinson v. Foxworth, 53 Miss, be made for a better bond in pursu- 741. ance of the statute. Jasoer County v. Skid Smedes & M. (Miss.) 683; Page .. ^^^^' ^ ^- ^- ^^„ '^^ 29 N W Rep Ford, 2 Smedes & M. (Miss.) 266. 6. Adamsj Kellogg, 29 N. v\ . Rep. 4. Home v. Mitchell, 7 Bush (Ky.) 679, 63 Mich. 105. 0,00 7 Wagener v. Booker, 31 b. O. '^5'. Nutter V. Connett, 3 B. Mon. 375, 9 S. E. Rep. 1055. 302 THE BOND. ^ § 179 after discovery of the defect, as to cause no essential injury to the other party.* In Alabama, whether the bond be void or defective, the plaintiff will be allowed to substitute a new bond. In either case the rule is the same.^ Georgia permits an amendment as to the matters of form.^ And in California it is said that if a word is omitted by mistake, when, by looking to the whole undertaking and the statute, it can be ascertained what word was intended to have been inserted, the omitted word may be supplied and the contract read as if it had been so executed, without even first reforming it by supplying the omitted word.* The bond is amendable by the insertion of a right name of a party or surety instead of a wrong one. Where the affidavit gives the name "Abraham" and the bond "Abram" the bond may be amended to conform to the affidavit.^ And if the wrong name is inserted and there is no doubt of the identity of the person, the court will insert the true name; and subse- quent proceedings in that name will bind the individual.® The bond may be signed in the partnership name, and if signed without authority the court may order a new bond to be givei by the plaintiff.' And if the attachment is in the partnership name, and it has nowhere been made to appear who are the members composing the firm, the bond, as well as the affidavit and writ, may be amended by inserting the names of the indi- viduals composing the firm.® If seals have been omitted from the signatures of the obligors on the bond, the bond may be amended by affixing seals or scrolls.^ But one of the obligors will not be allowed to so affix a seal to the name of another obligor.^" But in Florida and Alabama, when a bond with insufficient 1. Cheever v. Lane, 9 Iowa 193. 5. Alford v. Johnson, 9 Porter In Iowa where a bond for an insuf- (Ala.) 320. ficient amount has been filed, the 6. Adams v. Jacoway, 34 Ark. 542. filing of a new and sufiicient bond 7. Claflin v. Hoover, 20 Mo. App. will cure the defect. Van Winkle v. 314. Stevens, 9 la. 264. 8. Sims v. Jacobson, 51 Ala. 186. 2. Jackson V. Stanley, 2 Ala. 326. 9. Lea v. Vail, 3 111. (2 Scam.) 473. 3. Oliver v. Wilson, 29 Ga. 642. 10. Hunter v. Ladd, 2 111. 551. 4. Frankel v. Stern, 44 Cal. 168. 303 f ^30 EFFECT OF AN AMENDMENT. sureties has been filed, an amendment by giving additional security will not be allowed in attachment cases. The general rule regarding the amendment of an attachment bond is that a defect therein is not a sufficient cause for quash- ing the 'attachment, unless the plaintiff declines or neglects to give a good and sufficient one when an opportunity is given him so to do.^ The giving of notice as required by the statute or by the practice, must be observed/ Then, if the plaintiff fails to file a good bond when required by order of the court upon proper notice and motion, the attachment will be dis- missed.* When a plaintiff sees that his bond is not sufficient he may, on his own motion, ask leave of the court to amend it, and he will be allowed to make such amendment or file such new bond as the statute may require.^ He has a right to file another bond when the first is unavailing,' and not a nullity. § 180 (a) Efiect of an amendment.— If a defective attach- ment bond has been filed and approved, the subsequent filing and approval of a good bond by way of amendment causes the proceedings to become valid from the beginning.^ Such bond will take the place of the original one and be treated as if it had been filed then.« The filing of the subsequent good bond, in place of the original defective bond, will support the attach- ment against an intervening sale of the property.^" 1 Koalhac v Rigby, 7 Fla. 336; Abb. (N. Y.) Pr. 424; Pierse t;. Miles, J.L^y:^^Je,7TlrI:riAl..)4S3. 5Mont.549; Wood .. Squires, 28 Mo. 2. Planters, etc., Bank v. Andrews, 528. 8 Porter (Ala.) 404; Lowe v. Derrick, 6. Beardslee v. Morgan, 29 Mo. 9 Porter (Ala.i 415; Scott .. Macy, 3 471; Henderson .. Drace, 30 Mo. Ala.250;Tevist;. Hughes, 10 Mo. 380; 358. „q ^r^ q.o Van Arnsdale .. Krum, 9 Mo. 397; 7. McDonald ..Fist 53 Mo. 343. Cummings... Denny, 6 Mo. App. 602. See also ex parte Haralsom, 75 Ala. 3. Cummings «. benny,6Mo. App. 543. o n^i^ 984- I 8. McCraw v. Welch, 2 Colo. 284, 4'Tasner County V. Chenault, 38 Bretneyr'. Jones, 1 G.Greene (la.) 4. Jasper L^ouniy ^^^_ ^^.^^^ ^ Milwaukee Harvester 5 Alexander .. Lisbv, 2 Swan Co., (Iowa) 61 N. W. Rep. 243. (Tenn.) 107; Kissam .. Marshall. 10 9. Stj.te Bank .. Morr.sloowa 136. ^ ^ / 10. Bergman v. Sells, 39 Ark. 97. 304 THE BOND. § 181 § 181. Discharge of the bontl.^ — The attachment bond is of course discharged by complying with the conditions which it recites. The payment of tlie judgment obtained on the de- mand, for the recovery of which the attachment was brought, and the costs taxed thereon, is the most direct manner in which the obligation may be discharged. The payment of the full amount of the penalty named in the bond will also discharge the bond.^ In like manner the tender before judgment, in an action on the bond, of a sum sufficient to compensate the plaintiff for his damages will discharge the bond.' Under the Rhode Island statute, an attachment bond is va- cated by the death of the defendant before final judgment against him in the action in which the bond is given.* A bond, conditioned that if the plaintiff ''shall obtain judg- ment," etc., will not be satisfied and discharged by obtaining a judgment before a justice of the peace, if such judgment is afterward reversed.® An attachment bond is not a negotiable instrument, yet an assignment of it transfers an equitable interest, and the inter- est of an assignee will be respected in a court of law. A per- son who is in the possession of such a bond assigned in blank, is, in law, 'prima facie the owner of it, and if the obligor make payment in good faith to such holder, the bond will thereby be discharged.® 1. The discharge of the attachment distributed, the sureties were not dis- bond here mentioned must not be charged by plaintiff's failure to assert confounded with the bond for the dis- his privilege in the distribution. He charge of the attachment hereinafter was not bound to resort to that fund mentioned. See post, § 286. and involve himself in a litigation, 2. And where the principal has paid perhaps fruitless, and which the sure- the costs and damages, to the extent ties had not themselves requested, of the penalty of the undertaking, the Gordon v. Diggs, 9 La. Ann. 422. sureties are discharged. Palmer v. 4. Upham v. Dodge, 11 R. I. 621. Starbuck, (City Ct. N. Y.) 19 N. Y. And a discharge of the principal in S. 465. bankruptcy, before a judgment was 3. In Louisiana a creditor neces- obtained against him, operated to re- sarily releases the surety by seizing lease the sureties on the attachment and selling the property under a bond. Payne v. Able, 7 Bush (Ky.) 344. privilege, but where a steamer was 5. Bennett v. Brown, 20 N. Y. 99. released on bond, seized and sold by 6. Stoney v. McNeill, Harper (S. C » another creditor, and her proceeds 156. f 182 ACTION ON THE BOND. 305 § 182. Action on the bond— (a) "Debt," "covenant," "Tres- pass" or "case." ^ — The bond in attachment is required for the protection of the defendant.^ Therefore, if its conditions be broken, it is obvious that the defendant can procure redress to the extent of the penalty named in the bond, by resorting to an action on the bond.' It is scarcely necessary to state that no action can ever be sustained on a void bond;* but this is not saying that no other form of action will lie against the principal for the same cause. Furthermore, the dissolution of an attachment does not pre- clude an investigation of the question in an action on the bond. 8uch dissolution is only prima facie evidence that it was right- fully dissolved.* An action on an attachment bond is, of course, properly 1. No action is necessary in Wash- ington, because the code provides that the bond indemnifying tlie defendant in an attachment proceeding "shall be part of the record, and, if judg- ment go against defendant, the same shall be entered against him and sureties." This authorizes judgment to be entered against the sureties without notice to them. Park v. Mighell, 3 Wash. 737, 29 Pac. Rep. 556. Action on Foreign Bond. A bond given in attachment proceedings in another state, where it has been talven by a court having jurisdiction of the subject-matter, is good as a common law bond, and in an action upon it there is no necessity to set out any statute under which it was taken. Cunningham v. Jacobs, 120 Ind. 306; 22 N. E. Rep. 335. 2. Ante, § 153. 3. In Texas reconvention will not secure redress. The defendant in attachment must resort to an action on the bond. Shirley v, Byrnes, 34 Tex. 625. Att. 20 The sheriff may be liable for tres- pass, or for negligence causing the loss of property, but this will not re- lieve the plaintiff if he does not pre- vail in his attachment. In such a case he and his sureties are liable for the value of the property. Hamilton V. Hurst, 5 La. Ann. 150. Respecting the acquirement of juris- diction of a non-resident principal in an attachment bond in an action brought thereon, it has been held in Georgia that a statute providing for service upon the surety does not de- prive the principal of due process of law, because such principal, by volun- tarily seeking the extraordinary stat- utory remedy of attachment in another state than that of his residence, sub- jects himself to the statutory liability implied thereby. Continental Nat. Bank v. Folsom, 78 Ga. 449, 3 S. E. Rep. 269. 4. Benedict v. Bray, 2 Cal. 251. 5. Sloan v. Langert, 6 Wash. 26, 32 Pac. Rep. 1015. 306 THE BOND. § 182 brought in the form of "debt," or it may be in the form of "case," and then it will be governed in all respects by the rules applicable to actions on the case for wrongfully suing out the attachment. Nevertheless the recovery will be limited to the penalty named in the bond.^ Debt should be brought only for the recovery of damages suffered by the defendant in the attachment from being deprived of his property, its loss, de- struction, deterioration with costs and expenses he has actually incurred in the attachment suit. For other damages he must resort to an action on the case.^ The action of covenant will also lie in the first instance, and a recovery may be had for such damages as are properly recoverable in the common law action, and furthermore, for other damages on grounds contem- plated by the statutes, and not embraced by the principles governing the actions on the case.' When the attachment is wrongfully and maliciously sued out, the defendant is not confined to his remedy by an action on the bond, but may resort to the common law action on the case for the injury he has sustained,* and this before the at- tachment suit is determined.** Nor is it necessary for the obligee to first sue on the bond.® This action is in the nature of a common law action for malicious prosecution.' Both malice and the want of probable cause, in the original attach- ment, are essential to sustain this form of action. Malice alone, however great, is no ground for action if there was probable cause for the attachment proceeding.* The attach-, ment must have been wrongful.^ And no matter how malicious may have been the motives of the attachment plaintiff, this 1. Hill V. Rushing, 4 Ala. 212. See 4. Sanders v. Hughes, 2 Brevard (S. post, § 190. C) 495; Lexington and Ohio Ry. Co. Debt will not lie in North Carolina v. Applegate, 8 Dana (Ky.) 289. on a replevin bond given under the 5. Donnell v. Jones, 13 Ala. 490. attachment law. The proper remedy 6. Smith v. Story, 4Humph.(Tenn.) is scire facias. Summers v. Parker, 169. Term Rep. (N. C.) 147. 7. See post, § 370, "Malicious At- 2. Brucer. Coleman, 1 Handy (Cinti. tachment." Sup. Ct.) 515. 8. Senecal v. Smith, 9 Rob. (La.) 3. Smith V. Eakin, 2 Sneed (Tenn.) 418; Jackson v. Smith, 75 Ala. 97. 456. 9. City Bank v. Jeffries, 73 Ala. 183. § 182 ACTION ON THE BOND. 307 action will not lie if he had probable cause for the issuance of the writ. "It is a well settled rule of law, founded on the principles of police and convenience, that the prosecutor shall be protected, though his private motives may have been malicious, provided he had a probable cause for the charge."* Where, however, the obligee has recovered damages in general for the plaintiffs having maliciously caused the attachment to be issued, he can not thereafter maintain an action on the bond to recover special damages, for having chosen to sue for mal- ice, he is barred from his suit on the bond, because the former includes the latter.'^ But malice is not an essential element of an action on the case. It may be sustained for the wrongful suing out of the attachment only. The existence of malice is only important in connection with the amount of damages to be recovered." The circuit court of the United States, sitting in Pennsylvania, has said that ''trespass will lie for the ma- licious abuse of the writ of attachment;" that the party injured "should have his common law actions based specifically on the malicious intent."* But the general rule is, that trespass on the case and not trespass vi et armis is the proper form of ac- tion, and that "trespass" should not be resorted to unless the attachment is absolutely void.^ The bond being for the security of a firm against the wrong- ful suing out of the attachment, a partner whose property is tortiously seized has an action for the trespass, but not on the bond.' An action on the bond, or any other direct action, is not the only relief the attachment defendant may have for the damage he has sustained by the wrongful suing out of the writ; for, since a bond is a contract and the attachment can not issue 1. Grant v. Deuel, 3 Rob. (La.) 17. 4. Dyer v. Sharp, 2 Pa. Co. Ct. 2. Hall V. Forman, 82 Ky. 505. 216 ; Plunkett v. Sauer, 101 Pa. St. 356. But having first sued on the bond 5. Owens v. Starr, 2 Littell (Ky.) and recovered actual damages can he 230. thereafter recover exemplary damages 6. Mason v. Rice, 66 Iowa 174. See for the malice in an action on the further as to who may bring action csLse?—Qnere. on the bond, post, § 185, "Plaintiffs." 3. Kirksey v. Jones, 7 Ala. 622. See post, §190, "Recoverj'." 308 THE BOND. § 183 until after the bond is given, the damages occasioned by the attacliment arise ex contractu and may be set off in a subsequent action brought by the attachment plaintiff for the demand sought to be recovered by the attachment. The damages re- sulting from the closing of a factory for a month by the attach- ment have been so set off.^ And unliquidated (?) damages, when the same are capable of being calculated by a fixed stand- ard, form a proper subject for such set-off.^ § 183. (b) When the action accrues. — The time when an action on the bond accrues depends largely upon the conditions named in the bond, whether it be to indemnify the defendant in attachment against the wrongful issuing of the writ, or whether it be that the plaintiff will prosecute his suit to effect, and pay such damage as may be suffered, in case he failed to sustain the cause of action as alleged ; and the likQ. The right of action on the bond for the attachment, having been wrong- fully sued out, accrues in Iowa as soon as the attachment de- fendant is disturbed in the possession of his property by the levy of the writ.^ Nor is it required, under the Indiana statute, that there should have been an issue made on the affidavit and a finding for the defendant. There may be two results without it, either of which will entitle the attachment defendant to an action on the undertaking; (1) when the plaintiff has failed in his action after having proceeded wrongfully and oppres- sively, and (2) when, although the plaintiff has succeeded, the proceeding has been wrongful and oppressive, a right of action accrues on the undertaking whether the plaintiff has good cause for his main action or not, or whatever the result of the main 1. Plunkett V. Sauer, 101 Pa, St. But there must be a finding by the 356; Halfpenny v. Bell, 82 Pa. St. 128. jury that there was no reasonable 2. Hunt V. Gilmore, 59 Pa. St. 450. grounds for believing the allegations 3. Campbell v. Chamberlain, 10 Iowa on which it was based. This makes it 337. wrongful, and actual damages maybe And where willfully as well as recovered, but the same facts will not wrongfully sued out, exemplary dam- raise a presumption of malice so as to ages also may be recovered. Camp- support a recovery of exemplary dam- bell V. Chamberlain, 10 Iowa 337. See ages. Nordhaus v. Peterson, 54 Iowa as to "Recovery," post, § 190, 68, § 183 WHEN THE ACTION ACCRUES. 309 action may be.' In Kentucky it is said to be well settled that no action will lie on an attachment bond for maliciously suing out the writ until the aUachment shall have been discharged.^ The same was true in New York and is in Kansas and Missouri although a suit may be brought before final judgment in the attachment if after dissolution." But where the effect of a judgment is to vacate the attachment, the sureties on the bond may be liable for costs in the action, notwithstanding the at- tachment has not been formally vacated.* And it would seem to be a rule of general application that where a plaintiff vol- untarily abandons his attachment, he renders himself and his sureties liable in damages. Where such attachment has been set aside by order of the court it is prima facie evidence that it was illegally issued.' In Illinois tlie principal and sureties on the bond are liable for all damages occasioned by the wrongful issuing out of the writ, and this, too, whether or not the suit progresses to judgment.' But an action on a bond condi- tioned to pay the damages "if the plaintiff fail to prosecute the action, commenced by said attachment, with effect," can not be maintained until the entire proceeding is terminated. The condition can not be construed to mean if he shall fail to pros- ecute the attachment— "action" and "attachment" not being synonymous words.'' And where the condition of the bond is 1. Harper v. Keys, 43 Ind. 220. But in Nebraska, an action can not 2. Nolle V. Thompson, 60 Ky. (3 be maintained on the bond, where Mete.) 121. there has been service and appearance And such discharge must be alleged of the attachment defendant, until in the declaration. Nolle v. Thomp- after judgment dismissing the attach- son 60 Ky. (3 Mete.) 121. See post, ment. Eckman v. Hammond, 27 Neb. § 187, "Pleading." 611, 43 N. W. Rep. 397. 3. Dunning ^7. Humphrey, 24 Wend. 5. Cox v. Robinson, 2 Rob. (La.) (N. Y.) 31; Kerr v. Reece, 27 Kan. 313; Littlejohnr. Wilcox, 2 La. Ann. 469; State v. Gage, 52 Mo. App. 464. 620; Nockles v. Eggspieler, 47 Iowa And the plaintiff can not recover 400; Petittu. Mercer, 8 B. Mon.(Ky.) the value of the property levied on, 61 ; Steinhardt v. Leman. 41 La. Ann. if he has not been dispossessed ; and if 835. See post, § 188, "Proof in Action he has not been subjected to costs, he on Bond." is entitled to only nominal damages. 6. Bliss v. Heasty, 61 111. 338. Groat V. Gillespie, (N. Y.) 25 Wend. 7. Harbert v. Gormley, 115 Pa. St. 383. 237. 4. Lee v. Homer, 37 Hun ( N. Y.) 634. 310 _ THE BOND. § 183 to pay money attached so far as the effects shall be found liable to the plaintiff's demand, there is no breach of the condition of the bond until after some judgment has been rendered fixing the amount and finding the effects liable.^ Nor can an action be maintained upon a bond conditioned to pay "all such dam- ages as shall be awarded against the plaintiff in the attachment in any suit or suits which may thereafter be brought for wrong- fully suing out the attachment," until after judgment is ob- tained against the plaintiff in the attachment suit.^ And on a bond conditioned for the payment to the defendant of all damages sustained by reason of the issuing of the attachment, if the plaintiff shall fail to recover judgment in the attach- ment, the liability will not attach because of the dissolution of the attachment, unless the plaintiff fails to recover judgment.' But where the conditions of the bond relate only to the attach- ment and not to the cause of action itself, a failure to sustain the attachment suit would clearly entitle the attachment de- fendant to recover accrued damages.* Where the non-existence of the debt for wdiich an attach- ment issues is proven, it is, as a matter of course, a breach of the attachment bond and will entitle the defendant to recover in a suit thereon for the damages he has sustained.® And w^here a judgment is rendered in favor of the defendant on the merits he may sue the plaintiff on the bond for damages, al- though he may not have entered a plea in abatement.® The states are likewise divided in the matter of bringing the action against the sureties on the bond in the first instance, or first establishing the liability of the principal by an action against him alone. And this contrariety is owing to the dif- 1. Moore V. Allen, 55 Ga. 67. not be recovered. Sterling City Min- 2. Sterling City, etc.. Mining Co. v. ing Co. v. Cock, 2 Col. T. 24. Hughes, 3 Col. 229; Sterling City 3. Hahn v. Self ert, 64 Mich. 647, Mining Co. v. Cock, 2 Col. T. 24. 31 N. W. Rep. 564; Harbert v. Gorm- And then only for the amount of ley, 115 Pa. St. 237, 8 Atl. Eep. 415. such judgment, and if the condition 4. Kennedy v. Meacham, 18 Fed. respecting the payment of costs has Rep. 312. been omitted from the bond they can 5. Tucker v. Adams, 52 Ala. 254. 6. State V. Beldsmeier, 56 Mo. 226. c |g3 WHEN THE ACTION ACCRUES. 311 ferent views taken regarding the undertaking of the surety ^vhether it be a contract absolutely to indemnify the defendant or merely a contract of suretyship depending upon the liability of the principal/ In Washington it is not necessary either to make a demand on the principal in an attachment, or to sue him for damages resulting from a wrongful attachment before brinoing action against the sureties on such bond. And the same%naintains in Alabama, Illinois, Pennsylvania Tennessee and Virginia.' In Maryland, the defendant in attachment can recover the costs of such proceedings, as against the bonds- men, although he has not previously sued the plaintiff in at- tachment for such costs; but he can not recover other dam- ages * And in that state and Georgia, to make the sureties liable for damage done by reason of a wrongful attachment, such damage must first be ascertained in a suit against the plaintiff alone.^ In Louisiana the surety is not liable until the condition of the bond is forfeited, and the principal put ni delay Therefore judgment can not be entered in an action m which a surety is a party where no judgment is entered against the principal.^ And in Mississippi a joint action can not be maintained on the bond against the principal and sureties un- til after a recovery is had in a separate suit thereon against the principal, because the bond is conditioned only to pay such damages as may be awarded in a suit against him.' The actual payment of the damages sustained seems not to 1 Pinney v. Hershfield, 1 Mont. 6. Goodman t,. -Allen 8 La. Ann. ^- ^' ^ 381 ; Fraser v. Thorpe, 11 La. Ann. do/. 2 Seattle Crockery Co. v, Haley, 47. . .., • • 6 Wash. 302, 33 Pac. Rep. 650. AJl.fa. is proper against the pnnci- 3 Herndon .. Forney, 4 Ala. 243 ; pal before proceeding against the Churchill V. Abraham, 22 111. 455; surety. Goodman v. Allen, 8 La. Hibb3«. Blair, 14 Pa. St. 413; Smith Ann. 381. V Story,4Humph. (Tenn.) 168; Dick- A return onafi.fa.that ^t was im- inson.. M'Craw,4 Rand. (Va.) 158. possible to make a demand on de- 4 McLuckie V. Williams, 12 Atl. fendant personally, and that no prop- Rep 1 ' 68 Md 262 erty of his could be found, authorizes 5 McLuckie v. Williams, 68 Md. plaintiff to proceed against the surety. 262'- Sledge .. Lee, 19 Ga. 411; and Collins «. Edwards 13 La. Ann 34- se^ Freeman .. Young, 3 Eobt. (N. 7. Holcomb .. Foxworth, d4 Miss. y.) 666. 265. 812 THE BOND. § 183 be a condition precedent to the bringing of an action against the obligors on the bond; all that is necessary being that the plaintiff in the suit on the bond will be liable for the same.^ But only such damages as the defendant will be legally liable to pay may be recovered. For example, if a married woman's contract can not be enforced at law, the subject-matter is not an item for recovery in an action on an attachment bond.^ The obligors in an attachment bond are liable, notwithstand- ing the fact that the bond was given in a proceeding under a statute which is unconstitutional.' Furthermore, a bond it- self, though not good under the statute, may yet be good at common law.* Although the attachment plaintiff may have had a good cause of action, yet if he fails to recover on account of some irregularity in the proceeding posterior to the bond, the sure- ties will not be liable. ° An action may be had on a lost or destroyed bond. The bond being once given, the same action will lie upon it after destruction as before.* Where the attachment has been wrongful the obligee may recover the actual damages he has sustained, without first hav- ing brought suit for the malicious act of suing it out, and though such an action can not be sustained. The intention of the statute is to recompense the attachment defendant for the damage done to him notwithstanding the plaintiff may have acted in good faith.' When an action for malicious attach- ment can be maintained will be the subject of a subsequent article.' But any person may be proceeded against for ma- licious attachment whose direct malicious act caused the writ 1. Metcalfe v. Young, 43 Ala. 643. 325. See also Cook v. Boyd, 16 B. 2. State V. Kevill, 17 Mo. App. 144. Mon. (Ky.) 556. 3. State V. Stark, 75 Mo. 566. 5. Garretson v. Zacharie, 8 Martin 4. See ante, § 155; Williams v. Cole- n. s. (La.) 481. man, 49 Mo. 325. 6. Wheeler v. Slavens, 13 Smedes A maker of a bond, who, by his & Marshall (Miss.) 623. own acts, brings about a dissolution 7. Churchill v. Abraham, 22 111. of attachment, will not afterwards be 455. permitted to deny the validity of the 8. See post, § 370. bond. Williams v. Coleman, 49 Mo. § 184 MUST BE DAMAGES TO SUSTAIN THE ACTION. 313 to be issued, even though the principal for whom he acted as agent knew nothing of the transaction. The principal him- self will be liable on his bond or otherwise, unless it is shown that the agent had no authority to attach, and that his act was repudiated as soon as knowledge of it was received.^ §184. (c) Must be damag:es to sustain the action — Malice unnecessary. — A defendant in attachment can not recover in an action on the attachment bond unless he shows not only that the attachment was wrongful but that he has sustained some damage; the mere fact that the plaintiff in the attachment did not recover, is not sufficient.^ And such damages must be the natural and proximate consequence of the act of suing out the attachment.' How malicious soever the act of suing out the attachment may have been, the general rule is that no action may be had on the bond if a ground existed for such attachment.* Vexa- tion without wrong is no ground for a recovery.® But if the cause alleged did not exist in fact, no matter how well founded an attachment plaintiff's belief was that it did exist, the attach- ment was wrongful, and the attachment defendant may, in an action on the bond, recover such costs and damages as he sus- tained in consequence of such wrongful attachment by being deprived of his property, together with costs and expenses. 1. Seattle Crockery w.Haleyje Wash. 4. Calhoun v. Hannan, 87 Ala. 277; 302, 33 Pac. Rep. 650. Grant v. Deuel, 3 Rob. (La.) 17. 2. Winsor v. Orcutt, 11 Paige (N. 5. Jackson v. Smith, 75 Ala. 97. See Y.) 578; Britson v. Tjernagel, (Iowa) " Malicious Attachment," post, § 370. 57 N. W. Rep. 872; Mayne v. Council Therefore, if the attachment was Bluffs Sav. Bank, 80 Iowa 710, 45 N. sued out on just grounds and was W. Rep. 1057. abated on plea, because of a defect on 3. Jefferson County Sav. Bank v. the affidavit, the attachment defend- Eborn, 84 Ala. 629, 4 So. Rep. 386. ant can not recover even actual dam- See post, § 188, " Proof." ages. Sharpe v. Hunter, 16 Ala. 765. While costs for defending the at- However, such a case will seldom tachment may be an element of dam- arise under the present practice, be- age, the cost of defending the original cause the attachment plaintiff will, in suit on which the attachment issued all probability, have amended his af- is not an element of damages in an fidavit and sustained his attachment, action on the bond. White v. Wyley, 17 Ala. 167. 314 THE BOND. § 184 Probable cause does not affect the recovery of actual damages/ But the wrongful suing out of the attachment will not be in- ferred from the voluntary dismissal of the suit/ unless such suit was abandoned under circumstances showing that it was not instituted in good faith. In such a case the attachment defendant may, in an action on the bond, recover his damages and the costs of defending the attachment." Even though there is probable cause for believing that the alleged grounds do exist, and the plaintiff does act without malice, he and his sureties are nevertheless liable to actual damages, and although he voluntarily abandons his suit; because it is said that "any other construction of law would open the door for the right of attachment to be used as a means of profitable speculation and the extinguishment of the debt in damages."* Malice, as it pertains to the amount of the recovery in an action on the bond, will be subsequently considered.® And the question of damages recoverable in an action on the case for "malicious attachment" will be considered in a subsequent, chapter.® The injured attachment defendant may have his election as to which remedy he will pursue against his attach- 1. Churchill v. Abraham, 22 111. 455 ; rule of the common law that one man Petitt V. Mercer, 8 B. Mon. (Ky.) 51 ; can not sue another for having sued Kennedy v. Meacham, (Tenn.) 18 him, unless the suit of the latter was Fed. Rep. 312 ; Woods v. Huffman, 64 with malice and without probable Tex. 98; Bear v. Marx, 63 Tex. 298; cause (2 Greenl. Ev., § 449), said that Pollock V. Gantt, 69 Ala. 373 ; Durr v. there must also be malice on the part of Jackson, 59 Ala. 203; Metcalf v. the plaintiff, coupled with the want of Young, 43 Ala. 643 ; Donnell v. Jones, probable cause for bringing the attach- 13 Ala. 490 ; Alexander v. Hutchin- ment, or no action can be sustained son, 9 Ala. 825. See Dentu. Smith, 53 on the bond. Sledge v. McLaren, 29 Iowa 262; Vorse v. Phillips, 37 Iowa Ga. 64. 428; Seattle Crockery Co. v. Haley, And that the burden is upon the 6 Wash. 302, 33 Pac. Rep. 650. plaintiff in such action to show that 2. Nockels v. Eggspieler,47 Iowa 400. the attachment was taken with malice The recovery of even nominal dam- and without probable cause. Sledge ages in such a case is a question for v. McLaren, 29 Ga. 64. the jury. Nockels v. Eggspieler, 47 4. Steinhardt v. Leman, 41 La. Ann. la. 400. 835. 3. Littlejohn v. Wilcox, 2 La. Ann. 5. See post, § 190, "Recovery in 620. Action on the Bond." The supreme court,holding under the 6. See post, § 370. § 185 PLAINTIFF TO ACTION ON BOND. 315 ing creditor. The sureties are, of course, only liable on tlieir contract — the bond. § 185. ( d ) Plaintiff to action on bond. — The debtor who has been made a defendant in the attachment suit is the only per- son who can bring suit on the attachment bond. A third per- son whose goods have been seized as property of such debtor can not.^ But the benefits of the bond enure to each and every one of the defendants aggrieved by the suing out of the attach- ment. If they have a common interest, as in the case of part- ners, a suit on the bond should be begun in the name of all of them. On the other hand, if only one of the several defend- ants is in fact injured, it is equally clear that he alone may sue on the bond. Furthermore, he may bring the suit in the name of all for his use.^ Parties suffering a joint injury may, of course, recover in a joint action.^ And it seems that where the attachment suit was joint and the judgment thereon entered in the name of the partners jointly, joint damage having been sustained, the action on the bond must be joint.* A joint ac- tion may be maintained, although the attachment was levied upon the separate propert}^ of each of the defendants in which they had no joint interest.* And where the bond was executed to several, containing a condition to pay them such damages as they may sustain by the wrongful suing out of the attachment, all the obligees may join in an action on the bond, notwith- standing the fact that the attachment was levied on the in- dividual property of only one of them.® And such only of the 1. Davis t'. Commonwealth, ISGratt. ment bond was given, payable to the (Va.) 139. "defendants" for all the damage "he" 2. Renkert v. Elliott, 11 Lea(Tenn.) might sustain. The sheriff seized a 235; Voorheis v. Eiting, (Ky.) 22 S. stock of goods owned by them as W. Rep. 80. partners; but the judgment was ren- 3. Cochrane v. Quackenbush, 29 dered for both defendants, after which Minn. 376; Alexander ^7. Jacoby, 23 it was held that the non-resident de- Ohio St. 358. fendant had no right of action on the 4. King V. Kehoe, (Iowa) 58 N. W. attachment bond. Faulkner v. Brigel, Rep. 1071; Faulkner v. Brigel 101 101 Ind. 329, Ind. 329. 5. Boyd v. Martin, 10 Ala. 700; An attachment was brought against Weedon i'. Jones, (Ala.) 17 So. Rep. 454. two defendants jointly, one of whom 6. Sloan ?>. Langert, 6 Wash. 26, 32 was a non-resident, and an attach- Pac. Rep. 1015. In Alabama, the bond being pay- 316 THE BOND. § 186 obligees as have an interest in the damages sought to be re- covered may join without the others.^ In Texas a husband and wife may join in an action for the wrongful seizure of property on attachment.^ But in Louisiana the husband, who has obtained a judgment in an attachment suit brought by his wife for a separation of property and restitution of her separate estate, can not sue the surety for damages.' On the principle that the action enures to all of the defend- ants who suffer injury by the attachment, a bond reciting that it is payable to one of the defendants, naming him "et al." in an attachment suit brought against three named defendants, the bond enures to the benefit of the two which it does not name as well as to the one named therein.* But a bond exe- cuted to the defendant does not enure to the benefit of a third person w^ho intervenes and establishes his right to the property attached.® There is no privity between the intervener in a suit already begun and the sureties on the attachment bond, and he can not avail himself of the penalty named therein.® Nor is a third person, whose property is attached, entitled to sue for a relief on the attachment bond.' Nor does, in West Virginia, a bond conditioned to pay all damages "sustained by any per- son by reason of the suing out of said order of attachment" enure to the benefit of the sheriff who levied the attachment and took care of the property.' § 186. (e) Parties defendant to action on bond. — The obli- gors who executed the bond are, of course, proper parties de- fendant in an action thereon for the recovery of the penalty ablejointly, the action m?'. Lent, 1 Cal. 410. 5. Knapp, Spalding & Co. v. Bar- And notes given for such fees are nard, 78 Iowa 347, 43 N. W. Rep. 197. 328 THE BOND. § 188 of stone, cut and dressed, for use in the completion of the work, which was not of equal value for any other purpose. * Proof in defense to an action on the bond is confined to a narrow field. In most states there is nothing that can be shown in defense in an action on an attachment bond for actual damages occasioned by the wrongful suing out of the writ, ex- cept the actual existence of the grounds alleged for the attach- ment.^ But contrary to the rule that probable cause does not effect the recovery of actual damages, and that the attachment plaintiff who has wrongfully sued out the writ can not excuse himself because he acted in good faith,* it is the rule in all states where "reason to believe" in the existence of the ground averred gives cause for attachment, that the defendant in an action on the bond may not only show the grounds stated for the issuance of the writ were true in fact, but he may show that he had good cause to believe the ground stated for the writ to be true, and thereby excuse himself for suing out the writ of attachment, and defeat the action for the recovery of the actual damages suffered by the attachment defendant.* Under such a rule the plaintiff in the action on the bond has not only the burden in the first instance of showing that the attachment was wrongful, by showing that no grounds for it existed, but he has also the burden of proving want of reason- able cause for believing of their existence, by proof as to the conduct and the good faith of his transactions.* 1. Carpenter v. Stevenson, 6 Bush such action may be begun when the (Ky.) 259. dismissal of the attachment shows a 2. And this seems to be no defense failure to "prosecute the attachment" in an action for damage to property and no evidence can be offered by the when the attachment was dismissed attachment plaintiff to show that a because the affidavit was defective, ground for attachment existed. Vur- Lobenstein v. Hymson, 90Tenn. 606; pillat v. Zehner, 28 N. E. Rep. 556, 18 S. W. Rep. 250. 2 Ind. App. 397. Where, however, the bond provides 3. See stipra § . that the plaintiff in attachment "will 4. Vorse v. Phillips, 37 Iowa 428; duly prosecute the attachment and Dent v. Smith, 53 Iowa 262 ; Seattle will pay all damages" "if the proceed- Crockery Co. t>. Haley, 6 Wash. 302, ings shall be wrongful and oppres- 33 Pac. Rep. 650. sive," and the statute provides for an 5. Dent v. Smith, 53 Iowa 262; action on the bond, "if the proceed- Seattle Crockery Co. v. Haley, 6 ings were wrongful and oppressive" Wash. 302, 33 Pac. Rep. 650. § 188 PKOOF IN ACTION ON BOND. 329 "It is no justification nor mitigation of damages that the original indebtedness was a just claim, and that the creditor recovered a judgment upon the same. It does not entitle the part}'- to an attachment simpl}' because his claim is just. Some one of the causes laid down in the statutes must exist or the suing out of the attachment is wrongful."^ The defendant in an action on the bond can not set up the illegality of the bond. He will not be heard to say that a pro- ceeding he ''set a-going" was not executed according to law.* And the maker of a bond who by his c^n acts brings about a dissolution of the attachment will not afterwards be permitted to deny its validity.' Where the wrongful and malicious suing out of the writ of attachment has been averred in the declaration in an action on the attachment bond, and exemplary damages are sought to be recovered, the bringing of an attachment must be proved to be willfully wrong. It must be made to appear that the creditor procured the attachment without reasonable ground to believe the truth of the matter stated in the affidavit and with the in- tention, design, or set purpose of injuring the attachment defendant.* The mere showing that there was no reasonable grounds for believing the truth of the matter stated in the affi- davit will not raise the presumption of malice so as to justify the recovery of exemplary damages. It must be further made to appear that there was an intent to injure the debtor.^ Malice and want of probable cause go to the aggravation of damages, and exemplary damages can only be recovered when there is a malicious or wrongful abuse of the process.* Malice, however 1. Drununond v. Stewart, 8 Iowa ment. See post § 286, and Murphy 341. V. Montandon, 2 Idaho 1048, 29 Pac. 2. Drummond v. Stewart, 8 Iowa Rep. 851. 341. 4. Raver v. Webster, 3 Iowa 502. He can not show that his attach- 5. Nordhaus v. Peterson, 54 Iowa ment was void. Union Mercantile Co. 68. V. Chandley, (Iowa) 57 N. W. Rep. 6. Renkert v. Elliott, 11 Lea (Tenn.) 695. 235. 3. Williams v. Coleman, 49 Mo. 25. Alabama holds that there maybe This rule will not apply in a suit on vexatious and malicious abuse of the « bond given to dissolve an attach- writ and a recovery therefor without 330 THE BOND. § 188 great, will not alone sustain a recovery of damages.* There must have been a lack of ground on which to bring the attach- ment.^ But where malice has been proved, it seems, that slight positive evidence to show that the proceedings were groundless, will be sufficient.^ It is relevant evidence on the question of malice to show, in an action on an attachment bond, that a second attachment was sued out by the creditor against the debtor one week after the first.* But the plaintiff in the action on the bond will not be permitted to give evidence of slanderous words or declarations of the defendant, as plaintiff in the attachment suit, made after the commencement of the suit, without evidence showing that such declarations related directly to the act of suing out the attachment; because other malicious statements made at a later day are not evidence of malice at the time the writ was sued out.* While, as before stated, it is necessary in an action on the bond for the recovery of actual damages to prove that the very grounds stated in the affidavit for the attachment were true, yet when a recovery of vindictive or exemplary damages is sought, the proof of reasonable grounds to believe that the facts stated in the affidavit were true is sufficient.^ Showing that the attachment plaintiff had probable cause to believe in the existence of the ground stated, negatives the evil animus and wrongful purpose which might be imputed to the plaintiff, and will prevent a recovery of any but actual damages.' But reports may not be shown unless an offer is made to show that proving ill-will, on the ground that v. Smith, 9 Rob. (La.) 418 ; Grant v. the wrongful act is the vexatious Deuel, 3 Rob. (La.) 17. abuse contemplated by the statute. 2. City Nat. Bank v. Jeffries, 73 Durr V. Jackson, 59 Ala. 203. Ala. 183. But the majority of the decisions See ante, § 182, "Action on the go to the effect that the wrongful act Bond," and § 183, "When the Action may be made the basis of a recovery of Accrues," and it must have been aver- actual damages ; and willful and ma- red in the declaration, licious abuse of the process, a basis 3. Grant v. Deuel, 3 Rob. (La.) 17. for the recovery of exemplary dam- 4. Ryall v. Marx, 50 Ala. 31. ages. See "Malicious Attachment," 5. Burton v. Knapp, 14 Iowa 196. post, §370. ■ 6. Blum v. Strong, 71 Tex. 321. 1. Calhoun v. Hannan, 87 Ala. 277 ; 7. Bear v. Marx, 63 Tex. 298. Jackson v. Smith, 75 Ala. 97 ; Senecal « 188 PROOF IN ACTION ON BOND. 331 they were true, or that the plaintiff had reason to believe them to be so/ The recovery of vindictive damages may be de- feated by proving that the attachment was made on the advice of an attorney, without his having communicated the facts to the non-resident creditor and plaintiff in the attachment suit. To show that he acted without hialice, the defendant in the ac- tion on the bond may prove that other attachments were issued against the plaintiff one day before his attachment, in connec- tion with evidence that notice thereof was given to him before suing out the process.^ The wrongful issuing out of an at- tachment can not be justified by either indebtedness, pecuniary embarrassment, or insolvency, and yet in an action on the attachment bond, where it has been shown that at the time the attachment was sued out the defendant had been negotiating for a sale of his property at a low price, a statement of the^ at- tachment defendant that he ''was involved and broke," is evidence admissible as pertinent to the question of the bad faith of the conveyance.* In an action on the bond in Ala- bama for the wrongful and malicious suing out of the attach- ment on the alleged ground that the defendant in attachment was about to remove his property out of this state, so that the plaintiff would probably lose his debt, or have to sue for it in another state, it may be shown in defense that the attachment defendant had fraudulently disposed of his property ,^ or was about to fraudulently dispose of his property.' This is, how- ever, owing to the fact that the defendant is not, in that state, limited to the grounds alleged in the affidavit, but may show 1. Schrimpf v. McArdle, 13 Tex. books, accompanied with evidence of ogg the correctness of the accounts. Lock- 2 City Nat. Bank v. Jeffries, 73 hart v. Woods, 38 Ala. 631. ^|,^ jg3 To prove the ground of fraud, the 3 'Lockhart v. Woods, 38 Ala. 631. defendant may show that the plaintiff 4. Lockhart v. Woods, 38 Ala. 631. in the action on the bond used false And where the defendant has shown representations to obtain the credit the pecuniary embarrassment of the for the debt sued upon m the attach- plaintiff at the time the attachment ment suit, or that he had confessed was levied, the plaintiff may show in judgment in favor of the parties, rebuttal subsisting accounts due him Hibbs v. Blair, 14 Pa. St. 413 as a physician, as charged in his 5. Lockhart i;. Woods, 38 Ala. 031. 332 THE BOND. § 189 other grounds which would have authorized the issuance of the attachment.^ Where the defendant in an action on the bond alleges the indebtedness of the plaintiff, and his disposal of and removal from the state of his property, with the intent to defraud his creditors, he may offer evidence of the amount of plaintiff's indebtedness at the \ime when the writ was sued out, and of the fact that for some time he had been selling his property, and that some two months after that time he had been acting fraudulently.^ § 189. (h) Record in the attachment suit as evidence in the suit on the bond.' — In an action on an attachment bond, the writ of attachment and the officer's return thereon are admis- sible in evidence, and the defendant can not rely upon any illegality therein, for if an attachment has been in fact made, the attachment plaintiff will not be permitted to show that the process which he had sued out and set a-going was not exe- cuted according to law. Nor will the defective service of the writ render the writ void.* The record can not be contra- dicted; but the plaintiff in an action on the bond may show by extraneous evidence what property of his was seized under the writ and delivered to the plaintiff thereon, by whom it was con- verted, although the return on the writ is silent on the subject; because such evidence does not contradict the record, but shows what the true record ought to be.® But the truth of the affidavit in the attachment can not be inquired into in a suit on an attachment bond brought for a fail- ure to prosecute the attachment with effect.* 1. Baxley v. Segrest, 85 Ala. 183. troduced. A judgment in attachment 2. Gaddis v. Lord, 10 Iowa 141. was thereby proved. Hahn v. Seifert, 3. Under a bond conditioned to pay 64 Mich. 647, 31 N. W. Rep. 564. all damages in case the attachment 4. Drummond v. Stewart, 8 Iowa plaintiff should fail to recover judg- 341. ment in attachment, an action was 5. Hensley v. Rose, 76 Ala. 373. begun. As evidence of a judgment Under the California code the re- in attachment, the justices' docket turn of a sheriff upon process is i^nma prepared for judgments by confession facie evidence of the facts therein in attachment which should have stated. Hammond v. Starr, 21 Pac. been entered in the other docket Rep. 971, 79 Cal. 556. where the commencement of the at- 6. Hayden v. Sample, 10 Mo. 215. tachment suit was recorded, was in- § 189 RECORD AS EVIDENCE IN SUIT ON THE BOND. 333 When an attachment has been dissolved on motion because the allegations in the affidavit were false, and because the case is one in which an attachment can not issue, the dissolution is conclusive in an action on an attachment bond, unless it has been reversed on error. ^ And a discharge of an attachment on its merits is conclusive between the parties as to the fact that it issued without good cause; and that issue can not be retried in the action to re- cover damages for the wrongful seizure of the property.^ The judgment in the original suit is conclusive in a suit on the attachment bond, as to the amount of the defendant's in- debtedness." Therefore, when an action is brought against a surety on an attachment bond, which provides for the pay- ment of all costs adjudged to defendant in attachment in case the same be wrongful, it can not be shown that certain items of costs and disbursements in the judgment were erroneously included therein.* In Alabama in a suit on an attachment bond, a judgment on a verdict against the plaintiff in the at- tachment suit is not conclusive that the attachment was not wrongfully sued out.* But in Arkansas where the affidavit for the attachment has been controverted and the issue determined in the defendant's favor, and the attachment has been there- upon discharged, such judgment will, in a suit on the bond against the principal and sureties, be conclusive as to the wrongful issuing of the writ.* But if such judgment has been rendered because of the informality of the bond, and not be- cause of its falsity, this is not sufficient proof that the attach- ment was wrongfully sued out.' However, in Louisiana it is said that courts should not aid either party to enforce an illegal contract, and therefore in an 1. Hoge V. Norton, 22 Kan. 374. 4. Drake v. Sworts, 24 Or. 198, 33 2. Mitchell v. Mattingly, 58 Ky. Pac. Rep. 563. 237. 5, Sacket v. McCord, 23 Ala. 851. 3. Gaddis t>. Lord, 10 la. 141. 6. Boatwright v. Stewart, 37 Ark. In Louisiana a judgment confessed 614. by the principal after a cession, on a 7. Boatwright v. Stewart, 37 Ark. .bond executed theretofore, does not 614. bind the surety. Herrick v. Conant, 4 La. Ann. 276. 334 THE BOND. § 190 action against the surety, the fact that judgment was rendered in the original suit for defendant will not alone be noticed; but the courts will also consider the reasons why it was ren- dered.* But the surety who attacks the validity of the judg- ment against defendant can not show, by the attorney who filed the answer, that he did so by mistake, and without au- thority, where the defendant is regularly in court, at least to the extent of the property attached, and he has neither ap- pealed nor in any manner disapproved of the acts of the coun- sel representing him; he must be presumed to have been satisfied with the same." Nor will sureties on the bond be allowed to contradict the recitals of their bond, after their lia- bility has been fixed by judgment and a return of execution against their principal.' § 190. (i) The recovery in an action for wrongful attach- ment. — The amount which may be recovered in an action for the wrongful suing out of an attachment is dependent upon the form of the action as well as upon the parties defendant. If the action is brought on the bond the recovery will, in any event, be limited to the penalty named in the bond.* If it is 1. Clarke v. Scott, 2 La. Ann. 907. and then set up the want of such levy 2. Doane v. N. O. Telegraph Co., 11 as a ground for his discharge. Doane La. Ann. 504. v. N. O. Telegraph Co., 11 La. Ann. It is the surety's duty to ascertain 504. for himself who is the true principal 3. Price v. Kennedy, 16 La. Ann. 78. in the bond. Therefore, when the 4. See ante, § 163; Sturgis u. Knapp, principal named therein is the party, 33 Vt. 486. for whom he intended to become One case in Iowa, however, holds surety, and it proves to be in fact the that if the bond contains a stipulation bond of another party, by whom it is for a reasonable attorney's fee as signed, the loss must fall upon the part of the costs, that fee may be al- surety, for by his intervention plaint- lowed in addition to a judgment for iff has been deprived of his recourse the full penalty of the bond. Union on the property. Neither can the Mercantile Co. v. Chandler, (la.) 57 surety avail himself of his own mis- N. W. Rep. 595. take as a ground for his release or of When the principal has paid costs the property. Doane v. N. O. Tele- and expenses exceeding the penalty graph Co., 11 La. Ann. 504. namedin the undertaking, the sureties Nor will he be permitted to aid in are discharged. Palmer v. Starbuck, defeating the levy of the execution, (City Ct. N. Y.) 19 N. Y. S. 465. § 190 KECOVERY IN ACTION FOR WRONGFUL ATTACHMENT. 335 brought against the attachment plaintiff alone, and malice is alleged and proved, exemplary damages may be awarded But the fact that the attachment was maliciously sued out will not effect the liability of the sureties because "motive" and "probable cause" are not applicable as to them.' If the action is not on the bond against the parties thereto, but at common law against the plaintiff, the amount of the penalty named in the bond is of course irrelevant, im- material, and of no effect in limiting the amount of the re- covery.* . 1 • + The non-existence of indebtedness to the attachment plaint- iff from the attachment defendant for which, and at the time, the attachment was sued out, primarily entitles such defend- ant to recover his actual damages.* It is almost a universal rule that the wrongful suing out of the writ entitles the attachment defendant to recover dam- ages without proof of malice, but when both the wrongful and malicious suing out of the attachment is alleged and proved, exemplary damages may also be recovered.'' General rules for the recovery of damages in an action on the bond have] been aptly given as follows : (1) The damages must be the nat- ural and proximate consequence of the wrong done, and not the remote accidental result. (2) Special damages— or what are variously called -exemplary" -punitive" or "vindictive' 1 See below dorf v. Fellner, 76 Wis. 1; Dunning 2' Elder V. Kutner, 97 Cai. 490. t,. Humphrey, 24 Wend. (N. Y.) 31. 32 Pac. Rep. 563; Dawson v. Baum, The improper suing out of an at- 3 Wash T 464, 19 Pac. Rep. 46. tachment when not wrongful, u e., 3 See "Liability of the Plaintiff," where there was just grounds for f § 357 bringing an attachment, seems not to 4 Tucker v Adams, 52 Ala. 254; be sufficient basis on which to recover Lockhartt^. Woods, 38 Ala. 631. even nominal damages. As where 5 Pounds ^.Hamner, 57 Ala. 342; the attachment was abated on plea Hays V. Anderson, 57 Ala. 374; for a defect in the affidavit. Sharpe Chlrchill .. Abraham, 22 Til. 455; ..Hunter, 16 Ala. 765. But this is Floyd ^^. Hamilton, 33 Ala. 235; Myers generally immaterial m the present V Farrell, 47 Miss. 281; State v. practice, because the attachment Schobe, 23 Mo. App.474; Moore v. plaintiff will, in all probability, cure Withenburg, 13La.Ann.22;TeaU. such defect by amendment and Lyons, 30 La. Ann., Part IT, 1140; sustain his attachment. Harris v. Finberg, 46 Tex. 79 ; Brauns- 336 THE BOND. § 190 damages — can be recovered only when they are not too re- mote, and are specially declared on and claimed in the decla- ration, or complaint. (3) What are variously termed specu- lative damages, — possible or probable profits that it is claimed could have been realized but for the tortious act or breach of contract charged against the defendant, — are generally too re- mote and can not be recovered.* In some states only such damages can be recovered as are strictly compensatory,^ and the immediate consequences of the attachment.* Compensation includes reasonable costs and ex- penses in procuring the discharge of the attachment, but not injury to reputation, and not in Ohio to depreciation in value depending upon the opinion of witnesses.* Nor in Kentucky does it include injury to the debtor's credit, his sensibilities, his business, etc., the proper remedy for such being an action on the case.* And in Missouri the damages which result naturally and proximately from the attachment can alone be recovered.® Other states hold to a broader view as we will presently see and more specially when malice is alleged and proved. The measure of damages to be recovered is in some states said to be only the actual expenses and loss resulting from the attachment.' And only such as are incurred in the defense of 1. Pollock w. Gantt, 69 Ala. 373. And covered in an action on the bond by the following cases hold to the same the attachment creditors in the at- principle: Culver ^>. Hill, 68 Ala. 66 ; tachment proceeding. Weir i;. Dustin, Boiling V. Tate, 65 Ala. 417 ; Higgins v. 32 111. App. 388. Mansfield, 62 Ala. 267; O' Grady v. 2. Goodbar v. Lindsley, 51 Ark. 380. Julian, 34 Ala. 88; Burton v. Holley, 3. Plumb v. Woodmansee, 34 Iowa 29 Ala. 318; Sims v. Glazener, 14 Ala. 116; Myers v. Farrell, 47 Miss. 281. 695; Donnell t?. Jones, 13 Ala. 409; 4. Alexander v. Jacoby, 23 Ohio Doll V. Cooper, 9 Lea (Tenn.) 576. State 358. But where the assignee of a co- 5. Pettitt w. Mercer, 8B. Mon.(Ky.) partnership on which the defendant 51. was a member, has defended the at- 6. State v. Thomas, 19 Mo. 613. tachment suit, and the principal has 7. Damron v. Sweetser, 16 111. App. not, the expenses of the assignee in 339; Howard v. Oppenheimer, 25Md. defending such suit can not be re- 350. § 190 RECOVERY IN ACTION FOR WRONGFUL ATTACHMENT. 337 the attachment/ or some proceeding connected therewith.' And no recovery can be had for costs and expenses incurred entirely in defending tlie main action.' Nor are the sureties on an attachment bond liable for the costs accruing on a trial of the right of property, between the plaintiff and a third per- son, who interposes a claim to the attached property.* In Nebraska, the sureties are liable for all damages which the defendant in the writ sustains, up to the time of re-delivery of the property to him on the dissolution of the attachment.* And in Missouri general damages are recoverable for the losses and expenses incurred "by reason of the attachment or any process or proceeding in the suit, or by reason of any judgment or process thereon" and losses and expenses suffered after the dismissal of the attachment may be recovered.' And under a condition to pay ''all damages which may accrue to the defend- ant in consequence of the attachment," the recovery may in- clude costs and expenses incurred by the trial of a plea in abatement to the affidavit.' A bond given by a party, on suing out an attachment from a justice's court, that he will pay all damages and costs if he fail to recover, extends to the final determination of the cause.' But, qusire, should sureties be liable for costs and expenses made by an appeal to have the 1. Johnson^ V. Farmers' Bank, 67 recoverable are such as are connected Kv '^SS- Norton v. Cammack, 10 La. with the attachment. State v. Lara- Ann, lo! bie, 25 Mo. App. 208. Where, because of the pecuhar cir- Costs in a justice's court are recover- cumstances of the case, a defendant able as part of the damages. Seay v. banking corporation recovered in Greenwood, 21 Ala. 491. an action on the bond the interest 3. Johnson v. Farmers' Bank, 67 which it lost on a deposit which was Ky. (4 Bush) 283; White v. Wyley, the subject of the attachment, see 17 Ala. 167; Stauffer t;. Garrison, 61 Northampton Nat. Bank v. Wylie, 4 Miss. 67. N Y S 907, 52 Hun 146, 16 Civil 4. Thompson v. Gates, 18 Ala. 32. Proc Rep. 326. 5. McReady v. Rogers, 1 Neb. 124. 2. State' V. Larabie, 25 Mo. App. 6. State v. Beldsmeier, 56 Mo. 226; 208. State v. O'Neill, 4 Mo. App. 221. Whether the attachment was dis- 7. Hayden v. Sample, 10 Mo. 215. missed or dissolved on a trial of the ^8. Ball v. Gardner, 21 Wend. (N. plea in abatement, the only damages Y.) 270. Att. 22 338 THE BOND. § 190 attachment reinstated?^ Costs of an appeal have been awarded where the dismissal of the case below was sustained by the ap- peal, and the bond provided for the payment of all costs which might be awarded and all damages which might be sustained by reason of the attachment if the defendant should recover judgment, although the attachment was not vacated on motion, but by dismissal of the complaint.^ And the costs of a certi- orari have been recovered in an action on the bond as part of the damage sustained by the attachment.^ In some other states the sureties on an undertaking are lia- ble not only for expenses incurred by the defendant on ac- count of the attachment, but also for all costs and disburse- ments adjudged to him in the action.* Attorneys' fees, which are reasonable for the services ren- dered and which were necessary in defending the attachment proceedings, may generally be recovered in an action on the bond as an item of actual damages,® when properly alleged in the plea,® even though the same be not yet paid to the attor- neys.' But in general, only such as are the natural and di- rect consequence of the attachment,* and not such as were paid in defending the principal suit,^ even though jurisdiction in the principal suit is obtained solely by attaching the property 1. Baare v. Armstrong, 62 How. (N. McKeon, 25 Mo. App. 667; Raymond Y.) Pr. 515, s. c. 26 Hun (N. Y.)19. v. Green. 12 Neb. 215 ; Territory v. 2. Palmer v. Starbuck, (City Ct. Rindscoff, 4 N. M. 363, 20 Pac. Rep. N. Y.) 19 N. Y. S. 465. 180; Northrup v. Garrett, 17 Hun 3. Bennett v. Brown, 20 N. Y. 99. (N. Y.) 497; Northampton Nat. Bank 4. Bing Gee v. Ah Jim, 7 Saw. 117; v. Wylie, 52 Hun (N. Y. Supr.) 146; Drake v. Sworts, 24 Ore. 198, 33 Pac. Jacobus v. Monongahela Nat. Bank, Rep. 563; Greaves v. Newport, 41 35 Fed. Rep. 395; Buckley v. Van Minn. 240, 42 N. W. Rep. 1059; Gran- Diver, 70 Miss. 622, 12 So. Rep. 905; dall V. Rickley, 25 Minn. 119. Byrne v. Gardner, 33 La. Ann. 6. 5. Seay v. Greenwood, 21 Ala. 491; 6. Vorsew. Phillips, 37 Iowa 428. See Higgins V. Mansfield, 62 Ala. 267; an^e, § 187. Behrenst?.McKenzie,23 Iowa 333 ;Selz 7. Raymond v. Green, 12 Neb. 215, ■»>.Belden,48Iowa451; Solomons. Mc- s. c. 41 Am. Rep. 763. Lennan, 81 Iowa 406, 46 N. W. Rep. 8. Patton v. Garrett, 37 Ark. 605. 1083; Byford u. Girton, (Iowa)"57 N, 9. Damron v. Sweetser, 16 Bradw. W. Rep. 588; Lyman v.Lauderbaugh, (111.) 339; Trapnall v. McAfee, 3 75 Iowa 481, 39N. W. Rep. 812; Swift Mete. (Ky.) 34; Porter v. Knight, 63 V. Plessner, 39 Mich. 178; State v. Iowa 365. § 190 RECOVERY IN ACTION FOR WRONGFUL ATTACPIMENT. 339 of a non-resident who subsequently appeared and put in a de- fense to the main action.* However, in Indiana, where both the action and the attachment have been defended, reasonable attorney's fees of the defendant in the action in which the at- tachment was sued out, as well as in the attachment proceed- ing itself, may be included in the damages.^ And in Iowa, where the whole defense in the original case tended to show the v/rongfulness of the attachment, it is held to be proper in an action on the bond to allow attorney's fees for services ren- dered in defending the entire case.^ But in New York it has been held, that where the whole efforts of the defense were di- rected towards defeating the principal suit by showing that the plaintiff had no legal claim (no effort being made to set the attachment aside), counsel fees could not be recovered against the sureties on the ground that they were "damages sustained by reason of the attachment."* In Kansas it has been said to be a question for the jury to determine whether it was proper to employ counsel from another county, and if so, that the fees incurred thereby may be recovered in an action on the bond.* In Tennessee, in an action brought upon a bond for the wrongful suing out of the attachment, although upon probable cause the plaintiff may recover costs paid by him, but not at- torney's fees.® In New York, a statutory bond, by the condi- tions of which the sureties are bound to pay all costs which may be awarded to the defendant, and all damages sustained by reason of the attachment in case the defendant recovers judgment or the warrant is vacated, does not render the sure- ties liable for the expense paid the defendant for counsel fees, as a part of the costs.' In Texas no attorney's fees are recov- 1. Frost V. Jordan, 37 Minn. 544, ment entered for the full amount. 36 N. W. Rep. 713. Union Mercantile" Co. v. Chandler, 2. Wilson V. Root, 43 Ind. 486. (Towa) 57 N. W. Rep. 595. 3. Whitney v. Brownewell, 71 Iowa 4. Northampton Nat. Bank v.Wylie, 251, 32 N. W. Rep. 285. 4 N. Y. S. 907, 52 Hun 146, 16 Civil If the bond stipulates that a reason- Proc. R. 326. able attorney's fee may be recovered 5. Tyler v. Safford, 31 Kan. 608. as part of the costs, such fee may be 6. Littleton v. Frank, 2 Lea (Tenn.) assessed as damages, in addition to 300. the full penalty of the bond, and judg- 7. Northampton Nat. Bank v.Wylie, 340 THE BOND. § 190 erable, although the attachment was wrongfully sued out, un- less it was with malice and without probable cause. ^ And in Pennsylvania, in an action on a bond, conditioned to pay "such damage as the court may adjudge," no attorney's fees can be recovered except taxable fees.^ And in California only taxable costs are recoverable.' In Alabama, the plaintiff in a suit on an attachment bond, conditioned as required by the code, is not entitled to recover reasonable attorney's fees for bringing said suit.* Expenses of traveling between the home of the attachment defendant and the place of trial incurred by reason of attending the attachment suit may be recovered,^ and also the value of the time lost by such attachment defendant.® In an action on the bond where the attachment was dis- missed and the property returned after showing that it was wrongfully sued out, the measure of damages should be the loss sustained by being deprived of the use of the property, in- cluding waste and deterioration in value, together with ex- penses incurred in defending the attachment. And this is the rule, although the property consists in work animals, utensils and tools.' And where the property is returned on dismissal of the attachment, the measure in such case will be the market value of the use of the property during the time of its deten- tion — not its value to the plaintiff.' But the damages recov- ered in an action on the bond can not exceed the injury occa- sioned by the party being deprived of the use of the property, or its loss, deterioration, or decline in value, with costs and expenses in defense of the suit.® The measure of damages for 4 N. Y. S. 907, 52 Hun 146, 16 Civil State v. Shobe, 23 Mo. App. 474 ; Hig- Proc. R. 326. But see Northrup v. gins v. Mansfield, 62 Ala. 267. Garrett, 17 Hun (N. Y.) 497. 6. Higgins v. Mansfield, 62 Ala. 267. 1. Hughes V. Brooks, 36 Tex. 379. 7. Boatwright v. Stewart, 37 Ark. 2. Jacobus V. Monongahela Nat. 614; Sanford ??. Willetts, 29 Kan.647; Bank, 35 Fed. Rep. 395. Frankel v. Stern, 44 Cal. 168. 3. Heath v. Lent, 1 Cal. 410. 8. Hurd v. Barnhart, 53 Cal. 97. 4. Copeland v. Cunningham, 63 9. Reidhar v. Berger, 8 B. Mon. Ala. 394. See, also, Watts v. Rice, 75 (Ky.) 160. Ala. 289. To recover for further injury resort 5. Tyler v. Safford, 31 Kan. 608 ; must be had to an action of the case. § 190 RECOVERY IN ACTION FOR WRONGFUL ATTACHMENT, 341 the attachment of a stock of merchandise may legitimately in- clude its deterioration in value during the time, and rent paid by the attachment defendant for the store building during the time the same was held under the writ.* The measure of dam- ages for wrongfully suing out an attachment on a stock of goods was said to be the cost of replacing the goods at the place where they were levied upon.^ Where cotton was seized on attach- ment, the depreciation in its value between the time of the seizure and the subsequent dissolution of the writ, was held to be the measure of damages sustained.^ In one case where bonds were seized, and the same falling due, were sold for less than what might have been obtained for them had no seizure been made, the attachment plaintiff was adjudged, in an action for the wrongful attachment, to pay the actual damage caused thereby.* When the wrongful attachment causes the entire loss of the property attached, and then only, the value of the jDroperty at the time of the attachment is to be considered in measuring the damages.^ To the market value of the goods, at the time of the attachment, must then be added interest at the legal rate from the seizure to the time of the trial.® When the attach- ment has been wrongful and the property has been sold, the measure of damages will be the difference between the market Eeidbar V. Berger, 47 Ky. 160. And asked to determine whether or not see succeeding paragraph of this sec- the attachment was wrongful, and tion. after the answer was given in the 1. Lowenstein v. Monroe, 55 Iowa affirmative, evidence was then re- 82. ceived to determine the extent of the In this case, it is said that loss of damage, to fix the amount to be al- profits or credit can not be recov- lowed. Selz v. Belden, 48 Iowa 451. ered, because they belong to that class 3. Fleming v. Bailey, 44 Miss. 132. of remote and speculative damages 4. Horn v. Bayard, 11 Rob. (La.) which the jury can not consider. Low- 259. enstein v. Monroe, 55 Iowa 82. 5. Boatwright v. Stewart, 37 Ark. As to the recovery for loss of profits 614 ; Sanford v. Willetts, 29 Kan. 647. in an action for mahciously suing out 6. Willis v. Lowry, 66 Tex. 540; the attachment, see below. State v. Gage, 52 Mo. App. 464; Blaul 2. Selz V. Belden, 48 Iowa 451. v. Tharp, 83 Iowa 665, 49 N. W. Rep. In this case for the wrongful suing 1044. out of the attachment, the jury were 342 THE BOND. § 190 value at the time of the attachment and the sum realized from the same.^ While the damage occasioned by the loss of business and credit because of an attachment is in most states too remote to be recovered in an action on the bond,^ yet some states permit it." In Mississippi it is said that loss of business caused by the seizure of goods may be a factor in computing the damages, when the same is shown as a matter of fact and not by the opinion or estimate of witnesses.* In Kentucky, one who has been prevented by an attachment upon his tools and materials from completing the work he has undertaken to do, is entitled to recover in an action on the bond consequential damages for the injury sustained.' But it does not include injury to the debtor's credit, his sensibilities, his business, etc., the proper remedy for such being an action on the case.^ But Louisiana goes so far as to say that a recovery of damages may not only include pecuniary loss and expenses, but also mortification, annoyance and vexation caused by the defendant in the attach- ment.' But this is not the general rule, as will next appear. Malice averred and proved, and that only, as a general rule, will entitle the plaintiff, in an action for wrongfully and ma- liciously suing out the attachment, to a recovery of exemplary damages. And exemplary damages are only recoverable to the extent that the attaching creditor has wantonly or maliciously resorted to the process with intent to injure the debtor.* And 1. Union Mercantile Co. v. Chand- 5. Carpenter v. Stevenson, 69 Ky. ler, (Iowa) 57 N. W. Rep. 595 ; Ruth- (6 Bush) 259. ven V. Beckwith, (Iowa) 45 N. W. 6. Pettitt v. Mercer, 8 B. Mon. Rep. 1073. See 51 N. W. Rep. 153, 84 (Ky.) 51. Iowa 715 ; Empire Mill Co. v. Lovell, 7. Byrne v. Gardner, 33 La. Ann. 6. 41 N. W. Rep. 583, 77 Iowa 100. 8. Accessory Transit Co. v. Mc- 2. Holhday w. Cohen, 34 Ark. 707; Cerren, 13 La. Ann. 214; Seattle Elder v. Kutner, 97 Cal. 490, 32 Pac. Crockery Co. v. Haley, 6 Wash. 302,33 Rep. 563. Pac. Rep. 650 ; City Nat. Bank v. Jeff- As to recovery in an action on the ries, 73 Ala. 183; McCullough v. Wal- case see below. ton, 11 Ala. 492 ; Offutt v. Edwards, 9 3. Meyer v. Fagan, 34 Neb. 184, 51 Rob. (La.) 90; Campbell?;. Chamber- N. W. Rep. 753; Seattle Crockery Co. lain, 10 Iowa 337; Plumb v. Wood- V. Haley, 6 Wash. 302, 33 Pac. Rep. 650. mansee, 34 Iowa 116. 4. Marqueze v. Southeimer, 59 Miss. 430. ^ 190 RECOVERY IN ACTION FOR WRONGFUL ATTACHMENT. 343 it must not be forgotten that no action can be maintained for maliciously suing out an attachment without shownig that the attachment was wrongful as well as malicious and vexatious When the attachment is proven to have been wrongfully and maliciously sued out, the plaintiff may recover for his wounded feelings.=^ But the fact that the attachment creditor was act- uated by malice toward some third person not a party to the process will not give ground for recovering vindictive^damages, if it was not vexatious toward the defendant himself." While in most states injuries to credit or business occasioned by an attachment are too remote to be an item of recovery even when the attachment has been alleged and proven to be both wrongful and malicious,* yet the same is in some states al- lowed.® But the better, and in some states the only, way to recover damages for injury to credit and prospective loss of profits in business is to bring an action on the case for maliciously suing out the attachment.® , • i i Apt rules for the recovery of damages have been laid down in Tennessee, and they apply to exemplary as well as to actual damages. They are : ( 1 ) Loss by injury, detention or convert- ing the property attached. (2) Loss by injury to plaintiffs business reputation and credit, as where he is thrown into bankruptcy by the attachment. (3) Vindictive damages based on falsity or mala fides of the claim, wanton abuse of the pro- cess or express malice in suing out, levying and continuing the attachment. And these three elements constitute the extent of 1. City Bank .. Jeffries, 73 Ala. 183 ; 3. Wood .Barker, 1 Ala. Sel. Cas. Helfrich .. Meyer. (Wash.) 39 Pac. ^^l^' ^^^^^^^^^^^^^ ^ Chamberlain, 10 ^Z£et^e attachment is made on Iowa 337; Lowenstein .. Monroe, 55 the advice of an attorney without his ^^J'^'^^^ 70 Ala. 308; communicating the facts to the non- ^^^- ^ ^°'''^°°^ i_7 ,0 tii Ann 30- resident creditor the latter is not Oberne - ^ ay lord 13 Ilh App. 30. liable for vindictive damages. City Mayer .Duke, -Tex^^^^' Nat. Bank .. Jeffries, 73 Ala. 183. 6. Holhday .. Cohe^, 34 Ark 707 2 Floyd V. Hamilton, 33 Ala. 235. State .. Thomas, 19 Mo. 613. See post, ^ §370. 344 THE BOND. § 190 the recovery in an action on the bond, as well as in an action at common law.* Evidence in mitigation of damages may be introduced by the defendant in an action on an attachment bond ; for example : where a second attachment has been made and sustained, and the same property appropriated to the satisfaction of the de- mand on which it was brought, as was seized under the first attachment (which was dismissed), the defendant may show the appropriation of the property on execution in the second attachment in reduction of damages.^ But where the recovery sought is confined to the injury of the property, the existence of a legal right to attach it will not mitigate the damages/ When may the jury be instructed to find for the plaintiff in the action? If the attachment plaintiff had no demand against the attachment defendant at the time of suing out the writ, the proceeding was, of course, wrongful.* Therefore when the evidence is such as to leave no room for controversy as to the right of recovery, and the jury are convinced by the evidence there was no debt, the court may charge the jury that ''if they believed from the evidence that no demand in favor of the plaintiff in the attachment, against the defendant, existed at the time said attachment was sued out, then they must find for the plaintiff in this action."® When the verdict is rendered for a sum greater than that authorized by the evidence, the ex- cess may be remitted.® 1. Doll V. Cooper, 77 Tenn. (9 Lea) 4. Tucker v. Adams, 52 Ala. 254. 576. 5. Lockhart v. Woods, 38 Ala. 631. 2. Earl v. Spooner, 3 Denio (N. Y.) 6. Kaufman .«. Armstrong, 74 Tex. 246. 65. 3. Lobenstein v. Hymson, 18 S. W. Kep. 250, 90 Tenn. 606. CHAPTER IX. THE WRIT. § 191. The purpose of the writ. § 196. Necessary formalities of the 192. When the writ to be issued. writ. 193. Where the writ to issue. 197. Amendment of the writ. 194. By whom to be issued. 198. To whom issued and delivered 195. Order in which several writs —Several writs— Alias writs. must issue. 199. The effect of the writ. § 191. The purpose of the writ. — ^Tlie purpose of the writ, or warrant of attachment, under the present prevailing prac- tice in attachment proceedings is twofold. Its first object is to cite the defendant to appear in person and defend the ac- tion begun against him, and its second object is to create an immediate lien upon the defendant's property, to await and satisfy the judgment that may be thereinafter entered against him. Such is the purpose when attachment is sought at the inception of the suit. But when it is resorted to only as an ancillary remedy in suits already begun by personal service, it has but the latter object to attain, the former having already been accomplished by the summons previously issued. "An- cillary attachment," or, as it is sometimes called, "attachment in aid," will receive further consideration in a subsequent article.* The purpose of the writ of attachment then is generally to institute a dual proceeding against the defendant. The first movement being directed toward obtaining a personal judg- ment against him, and the second movement being directed against his property to make it subservient to such judgment, and in case the first movement is unavailing, because of a fail- ure to obtain the personal service as a summons, then to sub- 1. See post, §215. (345) 346 THE WKIT. § 191 serve the satisfaction of the plaintiff's demand insomuch as the value of the property may be capable. In case this dual purpose of the writ is attained, there may be both a personal judgment and a satisfaction thereof by the thing. But the accomplishment of either one is not essential to the other, for if the attachment fail in a suit in which there has been personal service (or voluntary appearance of the de- fendant which is equivalent thereto), a personal judgment may nevertheless be entered. In a case where there has been no personal service or voluntary appearance, yet if the seizure has been lawful, a judgment in rem may be entered and the property seized applied to the satisfaction of the defendant's indebtedness to the plaintiff.* If there be neither service upon the defendant nor on his property, no judgment can be ob- tained.* Notwithstanding the diverse opinions that have been pro- nounced on the subject, it is now generally conceded that when the defendant is not personally served, and does not put in an appearance in answer to the publication, he is not personally in court, although the seizure of his property may have been legally perfected. In other words a 2)erson is not in court be- cause his property is. And that in such a case the action be- comes one purely in rem. And in consequence thereof the judgment thereafter obtained is not necessarily for the amount of the demand which the plaintiff may prove against the de- fendant, but must be a judgment against the property alone, and it will be subjected to the satisfaction of the defendant's indebtedness pro tanto, and the plaintiff will be left to resort to further proceedings for the remainder of his demand if any such there be.' 1. The seizure of the property, or Ins. Co., 43 Miss. 583; Rankin v. obtaining possession of the res, is es- Dulaney, 43 Miss. 197 ; Cooper v. sential to the jurisdiction of the court. Reynolds, 10 Wall. (U. S.) 308; Wool- Bray V. McClury, 55 Mo. 128. kins v. Haid, 49 Mich. 299; Elliott v. 2. As an instance of the last condi- Stevens, 10 la. 418; Monroe v. Castle- tion, see West v. Schnebly, 54111. 523. man, 3 A. K. Marsh. (Ky.) 399 ; Mixer 3. See generally as to the parties to v. Excelsior, etc., Co., 65 N. C. 552; the writ. Saunders v. Columbia Life Dean v. Massey, 7 Ala. 601; Thomp- § 192 WHEN THE WRIT TO BE ISSUED. 347 While the writ of attachment is sometimes held to not onl}'- serve the purpose of a process, but also that of a count or declaration/ j'et the prevailing rule is that although an attach- ment is a proceeding in rem, the same forms of j^leading must nevertheless be observed as in ordinary suits; that is to say, the plaintiff must file a declaration setting out the cause and nature of his demand before he can have judgment by de- fault.^ But in relation to this matter the practitioner is re- ferred to a subsequent portion of this work in which will be considered "proceedings on return of the writ." § 192. When the writ to be issued." — When the proper affi- davit has been filed, and the necessary bond given and ap- proved, the writ of attachment is issued as the next successive step in the proceeding. The importance of this being done in some states immediately after the making of the affidavit has been pointed out in relation to the time of making the affidavit.* The order in which these successive steps are to be taken must be observed, for if the writ should issue in advance of the filing of the affidavit and bond, or either of them, it will be void.' But where such preliminary papers have been handed to the clerk, away from his office, and the writ of attachment issued, although it is premature, the service and levy thereof becomes effectual and binding against the defendant and all others who have acquired no rights before the papers are actually lodged son V. Baltimore, etc., Steam Co., 33 ports to be annexed to the writ, it Md. 312; Stone v. Magruder, 10 Gill will be presumed that the writ did not & J. (Md.) 383. pass from the clerk's hands until the 1. Moore v. Hawkins, 6 Dana (Ky.) affidavit was made, and it makes no 289. difference whether or not the wi'it 2. Beck V. Irby, 36 Miss. 188. was filled out before the affidavit was 3. In some states no writ of attach- made. Where two acts are done at ment is required, the simple " order " the same time, that will take effect of attachment fulfilling the purpose first which ought, in strictness, to thereof. Gutman v. Virginia Iron have been done first, in order to give Co., 5W.Va. 22. it effect. Hubbardston Lumber Co. 4. See ante, § 128. v. Covert, 35 Mich. 254, and see also 5. Eli V. Guest, 94 Pa. St. 160. §§ 127 and 153. as to the "Aflidavit and If the affidavit was made on the bond being a prerequisite to the issu- same day the writ issued, and pur- ance of the writ." 348 THE WRIT. ' § 192 in the office.* When the statutory requirements of the filing of the affidavit and bond have been fulfilled, the writ will issue as a matter of course, and nothing more can be demanded until it does issue. ^ It is not necessary that an action should be pending before an attachment writ issues. It may issue simultaneously with the summons in cases begun by summons, and the court will presume, prima facie, that the summons issued at or before the attachment." And it may be levied upon the property of the debtor before a service of the summons." But where the sum- mons has been returned "not found," and the suit has been abated, the plaintiff can not thereafter sue out an attachment in the same case against the defendant as a non-resident, be- cause, after abatement, no suit is pending in which an attach- ment can issue and such attachment would be consequently void.® In Nebraska, under a provision of the code that an at- tachment may issue after the commencement of a civil action for the recovery of money, and, after the filing of an affidavit and bond in the office of the clerk, the order of attachment to be made by the clerk, "in which the action is brought," it was held that upon the filing of an affidavit and bond in the dis- trict court, that court has jurisdiction to issue an attachment, although the action in which the attachment is sought was 1. People's Sav. Bank and Trust to issue an attachment, unless it has Co. V. Batchelder Egg Case Co., 51 jurisdiction of the action, an attach- Fed. K. 130, 2 Cir. Ct. App. 126, 4 U. S. ment issued before the summons, and App. 603; Bank of Helenas. Batchel- served at the same time with it, will der Egg Case Co., 51 Fed. Rep. 137, 2 be irregular and will be set aside. Cir Ct. App. 141, 4 U.S. App. 614; First Fisher ■«. Curtis, 2 Sandf. (N.Y.)660; Nat. Bank v. Batchelder Egg Case White v. Johnson, (Ore.) 40 Pac. Co., 51 Fed. Rep. 137, 2 Cir. Ct. App. I^ep. 511. 142 4 U S App. 615. 5- ^^^^^'^ ^- Harkness, 9 W. Va. 13. 2. Griffith V. Robinson, 19 Tex. 219. Under a statute providing that on a 3. Blackman v. Wheaton, 13 Minn, judgment which remained unsatisfied 326; Schuster tj. Rader, 13 Colo. 329, and in which an action has been re- 22 Pac. Rep. 505; Central Sav. Bank turned "no goods," an attachment Co. V. Langenbach, 1 Ohio N. P. 124. mig^it issue " in the nature of an exe- 4 Webb V. Bailey, 54 N. Y. 164. cution," the issuance and return of But it can not be issued before the the execution was a condition prece- summons. Kellar v. Stanley, 86 Ky. ^^ent to the right to issue such attach- 240 5 S W. Rep. 477. ment. Snyder v. Miller, (Pa.) 19 Atl. But whenthe court has no authority ^^p. 309. Miller v. Snyder, 133 Pa. St. 23. § 192 WHEN THE WRIT TO BE ISSUED. 349 brought in a justice's court aud is pending in the district court on proceedings in error.* When it is necessary that certain facts must be proved in order to give the court jurisdiction to issue the process, such proof must be made and filed, for where there is a total defect in such proof, the process, if issued, will be void,^ as has been before shown.* But although the statute require such proof, and that the clerk must judge of the sufficiency of the bond, as hereinbefore shown,* yet it is not essential that he should manifest his approval by a formal entry. His issuance of the process after the bond has been filed is a sufficient approval.^ And a statement in the body of the writ that the bond has been filed, is equivalent to the statement that it has been approved.® The writ of attachment can not be issued upon a Sunday. What is considered as comprising the ''Lord's Day" is a ques- tion that has not been uniformly determined. It has been held to be the solar day ;' but is generally conceded to comprise the intervening time between midnight preceding and mid- night following the day that is termed Sunday.® And most states have statutes providing that the holding of court and the issuing of process within such time is illegal.* But the ques- 1. Strickler v. Hargis, 34 Neb. 468, by him, does not bear his indorse- 51 N. W. Rep. 1039. merit, and which, instead of keeping 2. Miller v. Brinkerhoff, 4 Denio on file he attached it to the writ, with (N. Y. Supr. Ct.) 118; Slaughter v. which it was afterwards returned to Bevans, 1 Pinney (Wis.) 348 ; Mayhew the clerk's custody, do not justify the ^. Dudley, (Wis.) 1 Pinney 95. exclusion of the affidavit and evidence 3. See ante, § 144. when there is no question of identity. 4. See ante, § 176. Beebe v. Morrell, 42 N. W. Rep. 1119, 5. Griffith v. Robinson, 19 Tex. 76 Mich. 114. 219 ; Levi v. Darling, 28 Ind. 497 ; also 6. Maniine v. Murphy, 8 Tnd. 272. ante, 176. 7. Consult Fox v. Abel, 2 Conn. In Michigan it has been held, under 541, which enters profoundly into the a statute which provides that upon consideration of the question, and filing an affidavit for attachment with cites Coke on Litt., 135. See also the clerk of court, "said clerk shall Geer v. Putnam, 10 Mass. 312, note issue a writ of attachment," etc., that (a) and Delamater v. Miller, 1 Cowen the issuance of an attachment creates (N. Y.) 75, note (a), a presumption that the proper affida- 8. Tracy v. Jenks, 15 Pick. (Mass.) vit was filed and that the mere facts 465-567. that an affidavit, which was made and 9. Consult your State statute or presented to the clerk, and received code. 350 THE WRIT. § 193 tion relating to the service of a writ of attachment on Sunday- will be considered hereinafter.' § 193. Where the writ to issue.— It seems almost needless to say that the writ must issue from a court having jurisdic- tion of the subject-matter, and yet this is a question that is fre- quently left without consideration until its full force is dis- cerned through experience. The only safeguard is a positive knowledge of the provisions of the controlling statutes. While we have found no judicial determination in this regard, yet it would seem that inasmuch as the ordinary action of attach- ment is twofold in its nature, that insomuch as it is a personal action it is "transitory," and that in so far as it is an action in rem it is a ''local" action. In other words, being a person- al action it may be begun wherever service can be had upon the defendant; and being an action in rem the seizure must be made on a writ issuing from a court having jurisdiction of the res.^ Where there is no personal service it must be prosecuted where the property is situate on which the action is founded.' Statutory requirements regarding the suing out of a writ of at- tachment must be strictly followed. An attachment against an absconding debtor can legally issue in Virginia only in the county where he last resided, or through which he is privately passing, or wherein he is absconding at the time of its being issued.* The statutory enactment in Michigan, requiring at- tachments to issue only to the court wherein one of the parties resides, if the debtor has property there, is jurisdictional and must be complied with, even though the property consists of an equity of redemption only and perhaps some personalty.® And under a provision of the New York code allowing attach- ment to issue out of the city court of New York against a do- mestic corporation whose place of business is within the city of New York, it becomes a question of fact whether the defend- 1. See post, § 205. 4. Barnet v. Darnielle, 3 Call (Va.) 2. Hinman v. Eushmore, 27 111. 509. 413. 3. Robinson v. National Bank, 81 N. 5. Schloss v. Joslyn, 28 N. W. Rep. Y. 385; Favrot v. Delle Paine, 4 La. 96, 61 Mich. 267. Ann. 584. ^ 194 BY WHOM TO BE ISSUED. 351 ant's place of business is in such city, and the recitals of the certificate of the incorporation are not conclusive of that fact.* Two writs may issue at the same time in different counties.' But simultaneous and conflicting attachments will be subse- quently considered.' § 194. By whom to be issued.— In most states the writ is issued by the clerk of the court to which the writ is made re- turnable and in which the matter will be determined. The issuance of the writ is an action judicial in its nature, whether it be done by the clerk alone or by direct order of the court.* It is an act by the court in the exercise of its jurisdiction. The statute directing the clerk to issue writs of attachment thereby invests him with sufficient judicial authority to do so, and this is done in most states, but in Minnesota, where the restrictions of the constitution of the state are such that judicial authority can not be delegated to a clerk, he is necessarily without power to issue writs of attachment until directed so to do by the court or judge.® A warrant issued by him without allowance by a judge is void, at least so far as the parties who procure its issu- ance are concerned.® The usual provisions of the statute, how- ever, permit the clerk to issue a writ of attachment without any order from a judge directing him so to do.' When the 1. Blumenthal v. Hudson River, etc., have authority to issue writ of attach- Co., (City Ct. N. Y.) 15 N. Y. S. 826, ment in vacation and without an order 21 N. Y. C. Proc. 217; Rothschilds, of the court and judge. Byers ??. Bran- Dithredge FUnt Glass Co., (City Ct. non, (Tex. Sup.) 19 S. W. Rep. 1091. N. Y.) 20 N. Y. S. 373, 22 Civil Proc. In Arkansas, where the clerk may Eep. 314. issue the writ in the absence of the 2. Morris v. Trustees, 15 111. 266. judge, an order made by the clerk, 3. See post. find directing himself to issue the 4. The issue of an original attach- writ is unnecessary, and the absence mentbyaclerkisajudicialact.butits of an order of the court or judge levy or service by a proper officer is a is conclusive evidence that the clerk ministerial act. Matthews v. Ansley, granted it himself. Baker v. Ayers, 31 Ala. 20. 25 S. W. Rep. 834, 58 Ark. 524. 5. Morrison v. Lovejoy, 6 INIinn. In North Carolina attachment may 183 ; Zimmerman v. Lamb, 7 Minn, be issued by a clerk of a county or 421; Guerin». Hunt8Minn.477. superior court. Cherry r;. Nelson, 7 6. Merrit v. St. Paul, 11 Minn. 223; Jones (N. C.) L. 141. Jacoby v. Drew, 11 Minn. 408. In Alabama the clerk of the circuit 7. In Texas the clerks of the courts court may issue the writ in any civil 352 THE WRIT. §194 statute requires an order of the judge or court to authorize the clerk to issue writ of attachment, an issuance of the writ with- out such an order is not generally an exercise of jurisdiction, and the proceedings will be void.^ But when attachment pro- ceedings are permitted to be amended in matter of substance as well as in form at every stage of the case, and all errors or defects not injuriously affecting the substantial rights of the defendant will then be disregarded, an issuance of the writ by the clerk without the order from the judge will not be invalid, if amended in that particular.^ Where the judge who has no clerk issues a writ of attachment himself, in a case commenced before him, it is not necessary to the validity of the writ that he should spread on his docket a formal order allowing the attachment. The issuing of the writ is itself the granting of the order.* And, under the Nebraska code, which action commenced by attachment, and for the collection of "any money demand," the amount of which can be certainly ascertained. In actions to recover "damages for a breach of a contract when the damages are not certain or liquidated," or when " the action sounds in damages merely," the judge or chancellor only can issue the attachment. But this does not deprive the clerk of authority to issue an attachment in an action to recover damages for the removal of four bales of cotton on which the plaintiff holds a landlord's lien for rent and ad- vances. Atkinson v. James, 96 Ala. 214, 10 So. Rep. 846. The clerk of the city court of Mo- bile has no power to issue original attachments. Matthews v. Sands, 29 Ala. 136. And see further as to the authority of clerks in Alabama, Gold- smith V. Stetson, 39 Ala. 183. 1. Howell V. Muskegon Circuit Judge, 50 N. W. Rep. 308, 88 Mich. 369; Ostertoch ■». Lent, 1 Hilt. (N.Y.) 158 ; Morrison v. Lovejoy, 6 Minn. 183 ; Guerin v. Hunt, 8 Minn. 477; Gold- smith V. Stetson, 39 Ala. 183; Lewis V. Dubose, 29 Ala. 219; Philpott v. Newman, 11 Neb. 299; Greenvault v. F. & M. Bank, 2 Doug. (Mich.) 498; Smith V. Greenleaf , 4 Har. & M. (Md.) 291. 2. People's Sav. Bank, etc., Co. v. Batcheldor, etc., Co., 51 Fed. Rep. 130, 2 Cir. Ct. App. 126, 4 U. S. App. 603 ; Bank of Helena v. Batchelder, 51 Fed. Rep. 137, 2 Cir. Ct. App. 141, 4 U. S. App. 614; First Nat. Bank v. Batchelder, 51 Fed. Rep. 138, 2 Cir. Ct. App. 142, 4 U. S. App. 615. And if a statute requiring the judge to indorse an order and the clerk to issue the writ be amended so as to confer upon the clerk the same au- thority the judge had before such amendment, it is thereafter neces- sary for the clerk to indorse such order, specifying the amount for which it is to be allowed, whenever he exercises such judicial function of allowing it. Same cases. 3. Winchell v. McKinzie, 53 N. W. Rep. 975, 35 Neb. 813. §§ 195, 196 ORDER IN WHICH WRITS MUST ISSUE. 353 provides that the judge of the court in which the action is brought grant an attachment, where the probate judge of the county grants an attachment on a debt not due, and signs the order officially, it will be presumed that he is judge of the county where the order was made, and that the judge of the district court was absent from such county.^ In Georgia, a justice of the inferior court may issue an attachment returna- ble to the supreme court. ^ And a notary public ma}'^ also issue a writ of attachment.^ Where the clerk has the power to approve the bond and is- sue a writ of attachment, his deputy clerk may do the same.* And where the writ is issued by a deputy clerk who has not taken the oath, it is not thereby voidable, nor subject to be abated on plea, because his actions, like those of any other offi- cer de facto have the same force, so far as the public and third persons are concerned, as the acts of the officer dejure} § 195. Order in which several writs must issue. — It is the duty of the clerk to issue writs in the order in which they are apj)lied for, but if the party making the first demand is not in attendance, the clerk need not delay the issuing of other writs against the same party.® § 196. Necessary formalities of the writ. — In view of the fact that the plaintiff in attachment may desire to take a judg- ment in rem, and of the fact that the defendant may not put in a personal appearance, which, if put in might, by the fact of such appearance, cure any defects in the f)laintiff's pleading, extraordinary care should be taken by the plaintiff in having the writ of attachment, as well as all other preliminary papers, accurately drawn and fully within the statutory requirements 1. Reed v. Bagley, 24 Neb. 332, 38 be interested in the event of the suit. N. W. Rep. 827. Georgia Ice Co. v. Porter, 70 Ga. 637. 2. Wanet v. Corbet, 13 Ga. 441. 4. Finn v. Rose, 12 Iowa 565 ; Wim- 3. Georgia Ice Co. v. Porter, 70 Ga. berly?;. Boland (Miss.) 16 So. Rep. 905. 637. 5. Joseph v. Cawthorn, 74 Ala. 411. And this though his employer may 6. Lick v. Madden, 36 Cal. 208. Att. 23 354 THE WRIT. § 19G SO that if a final judgment is entered and the propert}^ sold, the purchaser may get an indefeasible title.' The formal requisites of a writ of attachment vary under the different state systems, but, as a general rule, it must run in the name of the state and should be directed to the sheriff of the county where the property is situated and should command him to make the attachment.^ But, if wrongfully directed, the sheriff should have the clerk to correct it, or if it be undoubtedly meant for him and he goes on and makes a levy, his action will be sustained.' In states, like New York and West Vir- ginia, where attachment is considered a provisional remedy or 1. When an action is begun in a jus- tice's court in Minnesota, the writ will be sufficient to give jurisdiction if it be in the form prescribed by statute, requiring defendant to be summoned to appear at the office of the justice of a specified county, even though the town be not named. Beseman v. Weber, 53 Minn. 174, 54 N. W. Rep. 1053. In Kentucky it has been held that an attachment can not issue on the return of a capias, unless it be in the form prescribed by law. Irons v. Al- len, Hard. (Ky.) 44. 2. Sims V. Bank of Charleston, 3 W. Va. 415. In Nebraska, if the writ does not run to " The people of the state of Ne- braska," as required by the constitu- tion, the defect may be cured by amendment. Livingston v. Coe, 4 Neb. 379. In Kentucky the attachment must run in the name of the commonwealth, otherwise the proceedings will be re- versed. McDaniel tJ.Sappington,Hard. (Ky.) 94. 2\.nd if a summons issue in the name of the commonwealth, and signed by the clerk, an order of attachment on the back, also signed by the clerk, which order when read bv itself was not issued in the name of the commonwealth, the sum- mons and indorsements will be read together, as forming one writ, issuing in the name of the commonwealth. Northern Bank v. Hunt's Heirs, 93 Ky. 67, 19 S. W. Rep. 3. A writ directed to "All constables and sheriffs in the commonwealth of Kentucky," is good, where the debt is not over §50, and is returnable be- fore the justice who issued it, or be- fore any other justice in the county. Smith V. Terrill, 14 B. Mon. (Ky.) 256. 3. Warren r. Purtell, 63 Ga. 428. See Brown v. Neale, 3 Allen (Mass.) 74. In Alabama a statute provided that writs of attachment must be directed to "any sheriff in the state of Ala- bama," and be in any form prescribed therein, but that no objection shall be taken for any defect in form if the essential matters are set forth. A writ which was improperly directed "to the sheriS or any constable of said county," was properly amendable on the trial, because of a statute which provided that such writs might be amended for any defect in form or substance before or during the trial. Harring v. Kelly, 96 Ala. 559, 11 So. Rep. 600. §196 NECESSARY FORMALITIES OF THE WRIT. 355 auxiliary process, and being altogether the creature of legisla- tion, it may run in any form or style the legislature may choose to prescribe.* And the controlling statute should be consulted as to the form of the writ required. A writ of attachment ought regularly to be issued as of the term at which it was awarded, and must be made returnable within the time prescribed by the statute. However, if made returnable at a day earlier than by law is warranted, it is not void but merely voidable.' Neither is a writ of attachment, which is returnable to the second term of court after its date void, at least in Colorado. The writ may be amended in this re- gard.^ But an attachment is void if made on a writ returnable, by mistake, to a term of court which is passed.* In North Caro- lina the writ need not contain any special day of return. It conforms to the statute if made returnable within thirty days from its date.* Writs of attachment need not in all cases be 1. Gutman v. Virginia Iron Co., 5 W. Va. 22. 2. Barney v. Patterson, 6 Har. & J. (1 Md.) 182; Bank of Missouri v. Mat- son, 26 Mo. 243. The words " S. J. C, August term, Kennedec county, 1856," sufficiently shows to what court and term the writ is returnable. Lincoln v. Strick- land, 51 Me. 321. 3. Archibald v. Thompson, 2 Col. T. 388. See Casey v. Wiley, 5 Ga. 333. In Iowa the making of a writ re- turnable by the first day of the first term is surplusage, and the writ will be valid though it is omitted. West- phal V. Sherwood, 69 Iowa 364. In Illinois, when ten days do not in- tervene between the commencement of the suit and the first day of the court, the plaintiff has his election to have it made returna))]e to the next term or any succeeding term to be holden within three months. If, how- ever, it is made returnable to the first term, the case will be continued. Me- chanics' Sav. Bank v. Givens, 82 111. 157. In Pennsylvania the plaintiff may have his election to make his writ re- turnable the first Monday of the next term or on the fourth Monday of an intermediate month. Starbird v. Koonse, (Pa. Com. PI.) 10 Pa. Co. Ct. Rep. 449. 4. Dame v. Fales, 3 N. H. 70; Holz- man v. Martinez, 2 N. Mexico 271. 5. Hiatt V. Simpson, 13 Ired. (N. C.) L. 72. In New Hampshire, a writ issued from the supreme judicial court, dated May 25, and near the time the defend- ant's property was attached, was made returnable to the supreme judicial court at the October term, but the su- preme judicial court was abolished in August and its jurisdiction at trial terms conferred upon the circuit court. The circuit court held the writ to be sufticient in form, and sustained the attachment. Jenkins v. Sherburne, 56 N. H. 17. 356 THE WRIT. § 196 made returnable to the courts which issued them. In Georgia, for example, officers authorized to issue process of attachment in one county may make them returnable to the courts of an- other county.^ The rule governing tlie return of writs of at- tachment differs in some particulars from that controlling the return of other writs, as will be made to appear under the sub- ject of "return."^ The date of the writ is also a matter of importance, because if the date of the writ is subsequent to the date of the officer's re- turn of the attachment thereon, the attachment is void/ But a statute requiring an attachment to be dated on the day it was issued was complied with sufficiently when the date of the is- sue was indorsed on an attachment, although it was attested as of a former term. The attestation was rejected as surplusage.* And where the attachment shows the date of its issuance, a blank date in the clerk's attestation may be filled on motion.' The names of the ijarties to the suit should appear in the writ. In Mississippi, where the affidavit described the debtors as A, B, C and D, trustees, and the writ recited A, B and C, surviving trustees, the variance was said to be immaterial.® And a writ in the form of a trustee process is valid and will authorize an attachment, although no trustee is named therein.' This is also true in many other states, as will be shown when we consider the subject of ''writs of garnishment."* In New Hampshire a writ of foreign attachment, although in its form a joint process, is, in its character, objects and proceedings, and, in its legal construction, to be regarded as a several pro- cess as against the principal defendant and the trustee (garni- shee). And it is to be regarded as a several process as against , 1. Cox. V. Felder, 36 Ga. 597. 7. Badlam v. Tucker, 1 Pick.(Mass.) 2. See post, § 223. 389. 3 Berry v. Spear, 13 Me. 187. 8. See iJost, Vol. II. 4. Swan v. Roberts, 2 Coldw.(Tenn.) In Maryland a short note in attach- 153. ment is fatally defective if it does not 5. Brack v. McMahan, 61 Tex. 1. set out individual names of the mem- 6. Clanton v. Laird, 12 S. & M. bers of the firm in whose favor the at- (Miss.) 568. tachment is issued. Hirsh ij. Thurber, May be identified by referring to af- 54 Md. 210. fidavit and bond. Moore v. Brewer, 95 Ga. 260. § 196 NECESSARY FORMALITIES OF THE WRIT. 357 each of the several trustees (garnishees), unless they are ex- pressly charged in the declaration as joint trustees/ Where the name of the party against whom the writ of attachment is- sued is fictitious on the face thereof, the writ will be void and the officer who executes it will be equally liable with the attaching creditor, notwithstanding the fact that the evidence shows clearly that the party against whom it was intended to proceed by attachment is the owner of the property taken. ^ Slight clerical errors in the names of the parties, such as the omission of a letter or the insertion of one when no one can fail to apprehend the meaning, may be corrected after the levy.^ And a misnomer may be disregarded when the sense is apparent.* But whether a misnomer can be corrected or not, after the execution of the writ, depends largely upon the question whether the rights of the defendant or third persons would be impaired. If they would, the error in name is not then amendable.^ The necessary recitals in the writ differ in different states. When the statute requires that the ground for attachment must be inserted, the recitals thereof should correspond with those in the affidavit. If tliey are materially variant they ma}'- prove fatal. ^ But a misrecital in this regard will not in all states make the writ void. It may be voidable only.' Whether void or voidable only depends upon the liberality of the con- 1. Ingraham v. Olcock, 14 N. H. 5. Flood v. Randall, 72 Me. 439; 243. Button v. Simmons, 65 Me. 583. If they are not expressly declared 6. Woodley v. Shirley, Minor(Ala.) against as joint trustees, each is en- 14 ; Kennedy v. California Sav. Bank, titled to make all legal defense, to 97 Cal. 93, 31 Pac. Rep. 846; Cronin v. which he would, by law, be entitled if Crooks, 143 N.Y. 352, 38 N. E. Rep.368. he were alone declared against. In- Under a statute requiring only that graham t?. Olcock, 14 N. H. 243. See the warrant (writ) of attachment further as to "garnishment," the sue- "briefly recite the grounds of the at- ceeding volume. tachment," a recital in the writ that 2. Patrick v. Solinger, 9 Daly (N. the defendant "has absconded from," Y.) 149. etc., sufficiently follows the averment 3. Wellover v. Soule, 30 Mich. 481 ; in the afiidavit that the defendant had Wight V. Hale, 2 Cush. (Mass.) 486. "departed from," etc. Van Camp v. 4. Lovelady v. Harkins, 14 Miss. Searly, (Sup.) 29 N. Y. S. 757. 412. 7. Lovelady v. Harkins, 14 Miss 412. 358 THE WRIT. § 196 trolling statute of amendments. In Alabama, by force of the statute, "no objection shall be taken for any defect in lorm if the essential matters are set forth."' But in New York, the provision of the code that the warrant of attachment shall briefly recite the grounds of attachment is mandatory. There- fore the omission of such requirements are not mere irregular- ities, that can be cured by amendment, but fatal defects.^ The nature of the demand, at least, should be stated so spe- cifically that a recovery thereon will bar a subsequent demand for the same cause.' The necessity of a precise statement in the writ, of the amount and nature of the plaintiff's demand, depends largely upon the fact whether or not a further declaration is to be filed in the case. In West Virginia the issuance of a writ stating a larger amount than that named in the affidavit will be error which can not be corrected on motion, and is ground for quashing the writ.* In California the code requires a writ of 1. Blair v. Miller, 42 Ala. 308. See, also, Bruner v. Kinsel, 42 Ala. 493. 2. MacDonald v. Kieferdorf, (Com. PI. N. Y.) 18 N. Y. S. 763, 22 Civil Proc. 105. Under it a warrant of attachment which merely recited that "defendant has departed from the city and state of New York," when the same is not specified by the statute as a ground for attachment, rendered the writ void. McDonald v. Kieferdorf, (Com. PI. N. Y.) 18 N. Y. S. 763, 22 Civil Proc. 105. Nor was it a compliance with such requirement when the writ recited that it appeared by the affidavit of the plaintiff that "defendant has removed or is about to remove his property from the state, with intent to defraud, etc., or has assigned, disposed of or secreted" his property with like in- tent. The statement being in the al- ternative, the writ failed to recite briefly the grounds for attachment. Dintruff v. Tuthill, (Sup.) 17 N. Y. S. 556, 62 Hun (N. Y.) 591. In Tennessee an attachment of land recited "that the oath having been made that the said defendant hath absconded, or so conceals himself from said county that the ordinary process of law can not be served upon him," etc. This was held insufficient to au- thorize the issuing of an attachment, and such attachment having issued, all proceedings under it were void. Conrad v. McGee, 9 Yerg. (Tenn.) 428. See, also, "Alternative statement of grounds far attachment" in the af- fidavit, ante, § 146. 3. Hickman v. Gest, Sneed (Ky.) 297. 4. Ballard v. Great "Western Mining and Manuf'g Co., (W. Va.) 19 S. E. Rep. 510. In ^Massachusetts it has not been necessary to a valid attachment that a declaration, or any description of the cause of action on which it is intended to declare, be inserted in the writ or filed before the return-day, except in cases when an arrest of the person was § 196 NECESSARY FORMALITIES OF THE WRIT. 359 attachment to State -the amount" of the P";f ^^^^^^^^^^^ but the addition of the words -or thereabouts after the amount of the demand in the writ of attachmen , does no render the proceeding void on collateral attack And Minnesota a slight discrepancy between the amoun s stated m the warrant and those contained in the complan.t (affidavit . will not affect the validity of a lien secured under it, in a col- lateral proceeding.^ In Maine the statute provides that the to be made. Binney v.GlobeNat.Bank, 23 N. E. Rep. 380, 150 Mass. 574. In Georgia where the clerk failed to attach the process to the declaration and it was served alone, an amend- ment was allowed at a subsequent term, by attachins' process and order- ing service. Scarborough v. Hall, 67 Ga. 576. 1. Davis V. Baker, 25 Pac. Rep. 1108, 88 Cal. 106. 2. Shaubhut v. Hilton, 7 Minn. 506. An affidavit for an attachment stated the amount of the indebted- ness to be $923, with interest from a certain day. The writ and published notice stated only $923, omitting any allusion to interest. Default judgment was entered in favor of plaintiff for the debt and interest, as stated in the affi- davit. It could not be reduced by re- mittitur to the amount stated in the writ and notice, because the record must show that the merits as to the residue, after the remittitur, are with the plaintiff, and this could not appear on a default, after publication only. Cohen v. Smith, 33 111. App. 344. In Iowa the statute provides that the petition (affidavit) of a demand founded on contract, must state as nearly as practicable the amount due ; and states that the amount thus sworn to is intended as a guide to the sheriff, who must, as far as circum- stances will permit, levy on prop'-rty 50 per cent, greater in value than that amount. Tlie petition stated that $3,700 was due on notes, and asked for that amount, with interest, costs, and attorney's fee. The writ directed the sheriff to make an attachment to satisfy 13,700, with interest, attorney's fee and costs. The writ was not in- definite as to the amount to be at- tached, which was to be based on the $3,700 sworn to as due. Toledo Sav. Bank v. Johnston, (Iowa) 57 N. AV. Rep- 622. In a case in New York plaintiff s affidavit in attachment against non- resident defendants claimed $1,250. It appeared from the complaint and contract annexed, that the plaintiff was to receive from defendant a royalty of 20 per cent, on sales of a patented article, and at least $1,000 per annum. The complaint showed that the $1,000 was due, and averred that there was due the further sum of $250 for royalties. $1,250 was sufficiently shown to be due without averring a rendition of an account to defendants for the $250 rovalties. Sperry v. Fox, (Sup.) 17 N. Y. S. 740, 63 Hun (N.Y.) 627. In Missouri an averment m an at- tachment suit before a justice of the peace "that the defendants were tenants under a lease, and as such tenants failed to account to plaintiff for the rent * * * and as the ten- ants of the plaintiff defendants owe and are justlv indebted to the plaintiff 360 THE WRIT. § 19^ writ must affirmatively and distinctively state all the elements material to the plaintiff's case.' And no attachment of real estate can be made on a writ containing simply a count for money had and received, without any specification of the claim to be proved under it.^ Consequently an attachment of real estate upon a writ containing a count upon a promissory note, and a general count in which there is no specification of the claim to be proved under it, is void and can not be made valid by any subsequent amendment of the writ.' No attach- ment should issue for a larger amount than that sworn to in the affidavit or complaint.* Where it is not expressly so required by the statute, a writ of attachment need not recite the making of the affidavit and bond required by the plaintiff.^ The attachment statutes in general do not contemplate that the affidavit shall be annexed to the writ,' the filing of the affidavit and bond with the clerk being the general practice.' And where the statute requires that an order of attachment must be made, it is not generally necessary that such order recite that an affidavit has been filed for said rent in the sum of $100, and because it did not allege that the de- fer molasses the sum of $320," was fendant did knowingly aid and assist indefinite in not stating the year for in the fraudulent proceeding and which the rent accrued, the land in transfer of the property of the debtor respects of which it accrued, or the which was liable to seizure by attach- terms of the contract of renting, yet ment or levy on execution by the it was sufficient to confer jurisdiction, plaintiff, that being the ground for Holman v. Kerr, 44 Mo. App. 481. the plaintiff's action. Herrick v. Os- In Texas, if the clerk has omitted borne, 39 Me. 231. to fill out the blank in the writ with 2. Shaw v. Nickerson, 60 Me. 249. the amount of the demand, the attach- S.Drew v. Alfred Bank, 55 Me. ment may be ineffectual as to third 450; Phillips v. Pearson, 55 Me. 570. persons, yet as between the parties, 4. Reed v. Bank of Kentucky, 5 and in a case where the possession of Blackf. (Ind.) 227. the property already in the hands of 5. Tanner & Delaney Engine Co. u. the sheriff under prior attachments. Hall, 22 Fla. 391 ; Hays v. Gorby, S not interfered with, the writ maybe la. 203; Ellsworth v. Moore, 5 Fa. amended after levy. Munzenheimer 486. V. Manhattan Cloak & Suit Co., 15 S. 6. Burnside v. Davis, 65 Mich. 74, W. Rep. 389. 31 N. W. Rep. 619. 1. Herrick v. Osborne, 39 Me. 231. 7. But see Simpson v. Oldham, 2 A declaration was held insufficient Chand. (Wis.) 129. § 196 NECESSARY FORMALITIES OF THE WRIT. 361 or to refer to any affidavit. If it sufficiently appears by the record that a sufficient affidavit was filed by the plaintiff with the clerk when the order of attachment was issued, the order of attachment being otherwise sufficient is good/ And unless the statute specifically so requires, it is unnecessary that the writ should recite on its face that an order was made for its issuance.^ In Mississippi, where duplicate writs of attachment may be issued, it is not necessary that they should have an indorsement setting forth that they are such duplicates." The writ must be signed and sealed by the clerk or other officer who issues it. A writ of attachment, which, though regular in other respects, yet wants the signature of the clerk, will be quashed on motion interposed in due season, whether it be con- sidered simply irregular or absolutely void ; for, if it be merely defective, it is no process at all unless amended, and is subject to be quashed.* And, under some statutes, the failure of the clerk to sign is an error that can not be cured by amendment. Such omission will render the whole proceedings void." And this is true of the lack of a seal under some statutes. In Iowa the omission of a seal is a defect that can not be cured by amendment. It renders the writ absolutely void.^ The issu- ance of a writ from the circuit court having the seal of the district court is the same as having no seal.' In Minnesota a writ signed by the judge of the district court, but not signed by the clerk nor sealed, is void.' In Texas a process issued by 1. King V. Board, 7 W. Va. 701. amendment. Tallcott v. Rosenberg, 2. Armstrong v. Lynch, 29 Neb. 87, 8 Abb. (N. Y.) Pr. N. S. 287. 45 N. "W. Rep. 274. When has no seal see Wehrman v. 3. Saunders v. Columbus, etc., Ins. Conkhn, 155 U. S. 3l4. Co 43 Miss 583. 7. Shaffer v. Sundwall, 33 la. 579. 4 Smith V. Hackley, 44 Mo. App. But may be corrected by amendment. gj4 Murdough v. IMcPherrin, 49 la. 479. 5! Wiley V. Bennett, 9 Bax.(Tenn.) 8. Wheaton v. Thompson, 20 Minn. 581. 19^- 6. Shaffer v. Sundwall, 33 la. 579. Before November, 1866, the writ The lack of a seal to a writ issuing issued by a court commissioner m from the marine court of New York Minnesota was required to be signed is a mere irregularity curable by by the clerk, sealed with the seal of the court, otherwise it was void. O'Farrell v. Heard, 22 Minn. 189. 362 THE WRIT. § 197 the judge of the district court, and signed by the judge instead of the clerk, is valid.* In one case, under a statute requiring the process to be signed by the judge granting it, it was held not to be essential that the copy served should have a copy of the judge's signature subscribed to it.^ But under a Wiscon- sin statute which requires the courts to disregard any errors not affecting substantial right, and giving them power to amend any process by correcting mistakes at any stage of the proceed- ings, and providing for the amendment of any process when the defect is not prejudicial, and that no writ shall be abated or quashed for want of form, it was held in the United States court, in a case properly removed thereto, that where a seal was omitted by mistake from a writ of attachment issued in the state court, the federal court would regard the writ as amended in that particular, as it would have been so amendable under the state laws.' However, in Nebraska, where a county judge made an order granting an attachment in an action to be brought in the district court of the county and signed the same officially, but failed to attach the seal of the county court, and the order was filed with the clerk of the district court and he issued a writ of attachment thereon, it was said the omission of the seal did not make the order absolutely void, and that the objection could not be raised by third parties in a collateral proceeding.* §197. Amendment of the writ. — Whether or not a writ of 1. Sutherland v. De Leon, 1 Tex. debt was sworn to when such is the 250. provision of the statute. Walker v. 2. Greenleaf v. Munford, 19 Abb. Wynne, 3 Yerger (Tenn.) 62; Mc- (N.Y.)Pr.469,30How.(N.Y.)Pr.30. Culloch i;. Foster, 4 Yerger (Tenn.) The omission of the signature of the 162. attorney to a writ of attacximent, is- An attachment issued by a justice sued under the code, as a provisional of the peace is good, although signed remedy, may be amended. Kissam v. by his name merely, without the Marshall, 10 Abb. (N. Y.) Pr. 424. woi'ds justice of the peace, or the in- A justice's jurisdiction is special itials, "J. P." Henderson v. Pitman, and limited and he must strictly pur- 20 Ga. 735. sue the authority given him. There- 3. Wolf v. Cook, 40 Fed. Rep. 432. fore, attachments must issue under 4. Winchell v. McKenzie, 53 N. W. his seal, and it must appear that the Rep. 975, 35 Neb. 813. § 197 AMENDMENT OF THE WRIT. 363 attachment may be amended depends wholly upon the con- trolling statute of amendments. And the rules hereinbefore laid down in regard to the amendment of the affidavit will be found to be generally true in regard to the amendment of writs of attachment.* But whether the defect is amendable or not, always depends upon the question whether such defect renders the proceedings under the writ absolutely void or whether they are voidable only. If the former, of course there can be no amendment, but if the latter, the writ is generally amendable. But an amendment of the writ will not be permitted, when it would be prejudicial to the rights of third parties.' Amend- ments are intended for the curing of clerical errors and the question of allowing them is directed to the sound discretion of the court.' In Iowa, no attachment will be dismissed or quashed if the defect in the petition, bond, or writ can be amended so as to show that legal cause for the attachment ex- isted.* Illinois and other states have similar statutes. A party desiring to have an irregularity in an attachment corrected, must either proceed to that end at the earliest opportunity or offer a reasonable excuse for not having done so.'' The writ is sometimes amendable after the levy, as in Iowa." And in Georgia, when the levy was made by the proper officer, any mis- take in directing it is amendable. Therefore neither the writ nor the levy is void for a misdirection of the process.' The names of the parties are subject to amendment within certain limitations. In Alabama, where an attachment is sued 1. See ante § 187. Under this statute an attachment 2. Greenvault v. F. & M. Bank. 2 was held to be void because the writ Doug. (Mich.) 498; Clawsonv. Sutton recited that the petition was filed in Gold Mining Co., 3 S. C. 419. the "circuit court," and ordered the Leave was granted to amend a writ sheriff to make the return to that of attachment and capias, under the court, when in fact it was filed in the act of Maryland of 1795, before con- district court, the circuit court being demnation. Birch v. Butler, 1 Cranch then abolished. Robinson v. Breeze, (U. S.) C. Ct. 319. 83 Iowa 553, 49 N. W. Rep. 1026. 3. Cartwrightr. Chabert, 3Tex.261; 5. Smith v. Walker, 6 Rich. (S. C.) Lee V. Smyser, (Ky.) 29 S. W. Rep. 27. 169. 4. Rock Island i*low Co. v. Breese, 6. Atkinson v. Womeldorf, 53 Iowa 83 Iowa 553, 49 N. W. Rep. 1026; 150. Robinson v. Breese, 83 Iowa 553, 49 7. Warren v. Purtell, 63 Ga. 428. N. W. Rep. 1026. 364 THE WRIT. § 197 out and the names of the plaintiffs no where stated, the affi- davit, bond and writ may be amended on motion so as to set out their names.* In Massachusetts a writ has been amended after attachment, by substituting "Wright" for ''Wight," as the name of one of the plaintiffs, without vacating the attach- ment.^ And the amendment of the writ, by changing the name of the plaintiff "Mary Cain" to "Ann Cain" does not vacate an attachment of funds in the hands of persons summoned as trustee so as to give an assignment to a third person, made be- fore the amendment, preference over the attachment.' Nor does the insertion of a middle initial in the name of a party.* Nor is a lien created by an attachment dissolved in Connecti- cut by amending a writ in favor of A, B and D as execu- tor of C, sued out after the death of C, on a note payable to A, B and C, by erasing the name of D, and leaving it in favor of A and B as survivors.® But in Maine an attachment to en- force a lien for wages is lost by an amendment changing the Christian name of the plaintiff from "Edward" to "Ed- mund."' The recitals in the writ are amendable under the same gen- eral restrictions. In New York where a writ recites as ground for attachment "that the defendant has disposed, or is about to dispose, of property," etc., the use of the disjunctive "or" instead of the conjunction "and" is a mere irregularity; and if the affidavit will support the substitution of the word "and" it may be so amended.^ A summons issuing from the marine court of New York in an action wherein an attachment and order directing service of publication was granted, erroneously states six days instead of ten as the statute directs, as the time within which the defendant must answer, this being an ir- 1. Sims V. Jacobson, 51 Ala. 186. 6. Flood v. Randall, 72 Me. 439. 2. Wight V. Hale, 2 Cush. (Mass.) 7. Rothschild v. Mooney, 13 N. Y. 486. ■ S. 125, 59 Hun (N. Y.) 622. See as to 3. Cain v. Rockwell, 132 Mass. 193. the use of the disjunctive in stating 4. Diettrich v. Wolffsohn, 136 Mass. the ground for attachment in the affi- 335. davit, ante, § 146. 5. Johnson v. Huntington, 13 Conn. 47. S 197 AMENDMENT OF THE WRIT. 365 regularity merely and not an error affecting the jurisdiction, it was amended nunc pro tunc' In New Hampshire the precept of the writ, in a case of foreign attachment, commanded the officer to att'ach the money, goods, etc., of the principal defend- ant in the hands of two or more trustees, without the use of words to denote a joint possession or liability as trustees; the writ was allowed to be amended by inserting the words ''jointly" or "as copartners."^ In Maine a writ required the officer to attach "certain logs marked Y P X L, Y P X K, and Y P X O now lying," etc. The officer attached "certain spruce logs, * * * sixty-nine in number, being twenty-three of each of the above named marks." The plaintiff asked leave, and the presiding judge allowed him to amend the original writ, by twice inserting the words "and certain logs marked." It was held that the court had discretion so to do." In Iowa, the statute permits amendments which go to the form rather than to the substance, hence a writ may be there amended to correct a clerical error in the amount stated in the writ, and make it conformable to that claimed in the petition and notice.* And in Texas the blank in the writ for the amount of the demand being by a clerical error left without filling in the amount and the property being already in the hands of the sheriff under prior attachments, and no third party's rights being affected thereby, an amendment by inserting the amount was permitted. The ad damnum clause was permitted to be increased in a court below in Massachusetts so as to give a right of appeal.' The date of the issuance, or time for the return of the writ, when erroneously stated, being clerical errors, come within the amendments allowable when the rights of third parties do not intervene.' 1. Gribbon V. Freel, 93 N. Y. 93. Cloak, etc., Co., 15 S. W. Rep. 389, 79 2. Fullerton v. Haves, 32 N.H. 212. Tex. 318. 3. MurjDhy v. Adams, 71 Me. 113. 6. Danielson v. Andrews, 1 Pick. 4. Gourley v. Carmody, 23 Iowa 212. (Mass.) 156. A dissolution of an attachment after 7. If the writ shows the date of is- an amendment of such defect was suance, a blank date in the clerk's at- held erroneous. Gourley u. Carmody, testation may be filled on motion. 23 Iowa 212. Brack v. McMahan, 61 Tex. 1. 5. Munzenheimer w. Manhattan A writ was dated September 23d, 366 THE WRIT. § 198 The attestation is allowed to be amended nunc pro tunc in Texas and Colorado/ And in Texas the want of a seal is con- sidered a clerical error which may be amended.^ The effect of the amendment of a writ is to make such cor- rections date back to the original process, so far as this can be done without injury to the rights of third parties.' The power of the United States courts to allow amendments is, in the absence of some positive rule of state practice, the same in attachment suits as in others. The supreme courts will not revise a judgment in an attachment suit, for error in allowing the amendments, more rigorously than a judgment in an ordinary action would be revised, unless some local statute has been violated.* In fact an amendment has been allowed in a United States court when, under the statutes of the state in which the United States circuit court was held, a state court could not have allowed such an amendment.* §198. To whom issued and delivered — Several writs — Alias writs. — The writ should always be directed to the proper officer and not to his deputy, and yet if there be no doubt that the writ is meant for the sheriff he may make the levy and his the attachment was dated September which the original writ is pending, is 22d, when it should have been dated to be held. Scott v. Macy, 3 Ala. 250. the 23d. This was held to be a cleri- A writ which is returnable to the cal error, and that it was the duty of second term of court after its date is the clerk to allow an amendment not void in Colorado, but may be thereto. McCoy v. Boyle, 10 Md. 391. amended. Such writ is sufficient to A clerical error as to the month in justify the sheriff in levying goods the return day is waived by appear- thereunder. Archibald v. Thompson, ance and answer on the day intended. 2 Col. T. 388. Wellover v. Soule, 30 Mich. 481. 1. May v. Ferrill, 22 Tex. 340; Skin- An appearance to the suit in a gar- ner v. Beshoar, 2 Col. T. 383. nishee proceedings and filing an an- 2. Cartwright v. Chabert, 3 Tex. swer is a waiver of any defect in the 261 ; Whittenberg v. Lloyd, 49 Tex. garnishee summons. National Bank 633. of Commerce v. Titsworth, 73 111. 591. 3. Milliken v. Bailey, 61 Me. 316. A mistake in the writ of attachment 4. Tilton v. Cofiekl, 93 U. S. (3 sued as an auxiliary to a suit com- Otto) 163. menced in the ordinary mode may be 5. Ernstein v. Rothschild, 22 Fed. amended when there is a misstate- Rep. 61. ment of the time when the court, in X 299 THE EFFECT OF THE WRIT. 367 action will not be void, such misdirection being thereafter curable by amendment.^ Unless there is a special statute allowing such practice the writ properly issued to a particu- lar ofiicer (as the sheriff of the county) and delivered to an- other officer (as the sheriff of another county), will be un- availing. Under some statutes, where there is attachable property in several counties, several copies of the writ may be issued at the same time and sent to such different counties for service." In such case it is not necessary to make an indorse- ment upon such writs, setting forth that they are such dupli- cates." And under otlier statutes the sheriff is authorized to serve writs from any other county in that judicial district.* A second writ, or alias writ, is in general unauthorized, be- cause the affidavit for the first does not necessarily show the existence of the same state of facts at the subsequent time of issuing the second/ In West Virginia and Texas more than one attachment may issue on one affidavit and bond, and if the subsequent one is regular it will cure the defects in the first." § 199. The effect of the writ.— While the intended effect of the writ is to hold the property until the coming of an execu- tion to enforce the judgment which may be recovered in the 1 Warren v. Purtell, 63 Ga. 428. 6. Ballard v. Great Western Mining 2 Morris v. Trustees, 15 111. 266; and Mfg. Co., 39 W. Va. 394, 19 S. E. Carter ^^. Arbuthnot, 62 Mo. 582 ; Cross Rep. 510 ; Branshaw v. Tinsley, 23 S. V. Haldeman, 15 Ark. 200; Reed r. W.Rep.l84,4Tex. Civ. App. 131.Com- Kirkwood, 19 Ark. 332; Pendleton v. pare Barnett v. Ring, 55 Miss. 97. Smith, 1 W. Va. 16. Compare Stark ^?. An attachment on a judgment is, Marshall, 3 Ala. 44; Branshaw v. however, considered an execution, Tinslev 23 S. W. Rep. 184, 4 Tex. therefore an aKas can not issue in such Civ App 131 a case until the first is returned. And As to presumption when one of the the failure of the officer to return the writs is lost, see Gates v. Tust«n, 14 first will raise no presumption that it S W Rep. 827, 89 Mo. 813. has not been served. Baldwin v. ■3. Saunders v. Columbus, etc., Ins. Wright, 3 Gill (Md.) 241. But why Co 43 IMiss. 583. have an attachment to issue on a 4.' Sadler v. Tatti, 30 Pac. Rep. 1082, judgment ? It can not be more ef- 17 Nev. 429. fective than an execution. See ante, 5. Dennison v. Blumenthal, 37 111. §23. App. 385. 368 THE WRIT. § 199 attachment suit against the property of the debtor/ yet the mere issuance of the writ does not operate to impose such a lien upon the defendant's property.^ Nor does the lodgment in the hands of the officer.^ There must first be a levy by an officer having possession of such writ, and no matter how urgent may be the necessity for seizing the property of a debtor who is re- moving his propert}'^ for the purpose of defrauding his credit- ors, no such lien can be created until the writ is issued and in the possession of the officer making the seizure.* The only ef- fect, therefore, which the writ can have is to authorize the offi- cer to whom it is directed to make a levy on the defendant's property for the purpose therein set forth. When the writ is issued as an ancillary process to the summons theretofore is- sued in the case, the issuance of the writ is not the commence- ment of the suit.® A writ properly issued can not be vitiated by any irregular- ity of the officer executing it.® The lien created by the writ properly served will be the sub- ject of a subsequent article for the consideration of it here be- fore service necessary to create it is manifestly out of order. 1. Trowbridge v. Bullard, 81 Mich, ment, " at or after the commencement 451. See ante, § 191, " Purpose of the of the action," the action is considered Writ." commenced as soon as the petition is 2. Tomhnson v. Stiles, 28 N. J. L. filed in the proper court, and a sum- (4 Dutch.) 201; Means v. Winslow, 1 mons is issued thereon with ahonafide Smedes & M. (Miss.) Ch. 449. intent that it shall be served. Coffman 3. Crowninshield v. Strobel, 2 Bre- v. Brandhoeffer, 33 Neb. 279, 50 N, W. vard (S. C.)80. Rep. 6. 4. Wales v. Clark, 43 Conn. 183. In Mississippi, an attachment for See further as to " Levy," posf, §200. rent in arrear is not the commence- 5. See "Ancillary Proceedings," ment of a suit. Towns v. Boarman, 23 post, § 215. Miss. 186. Under the Nebraska laws, which 6. Davidson «. Owens, 5 Minn. 69. provide for the issuance of an attach- CHAPTER X. EXECUTION OF THE WRIT LEVYING ON THE PROPERTY AND SUMMONING THE DEFENDANT. Levying on the Property, % 200. The purpose of the levy. 201. What officer to make the levy. 202. Officer's duty to make the levy. 203. Officer may require bond of in- demnity, when. Officer protected in his official acts. When the officer should make the levy. The amount of property to be secured by levy. The manner in which the levy should be made — (a) Gener- ally. §208. 204. 205. 206. 207. (b) On property susceptible of manual delivery. (c) On property not suscepti- ble of manual delivery. (d) On chattels intermixed with those of a stranger. (e) On property owned jointly or in common with a stranger. (f) On mortgaged property. (g) On exempt property, (h) On land. 215. Levy of ancillary attachment — "Attachment in aid." 209 210 211. 212 213 214 Summoning the Defendant — Constructive Service — Publication. § 216. Necessity of service or con- structive service. 217. The purpose of publishing no- tice. 218. As to the publication itself. 219. Other acts than publication necessary — Mailing, posting and filing notices — Inven- tory. §220 Publication and other required acts must appear upon the record to have been per- formed. 221. The extent to which errors in the levy and personal serv- ice are waived by appear- ance. Amendment of the service of the writ. 222. Levying on the Property. § 200. The purpose of the levy. — A perfected attachment is an equitable assignment of the thing attached. It is Att. 24 (369) 370 EXECUTION OF THE WRIT. § 200 the substitution of the creditor for the debtor.* This is the ob- ject sought to be attained by attachment, and the purpose of the lev}' is to get the property of the debtor into the possession of the officer, there securely to await the determination of the right of the matter in controversy, in order that such property may be taken by the creditor in satisfaction of his demand, if such be the right; or that it may be returned to the alleged debtor in the event of the creditor failing to prove the justice of his demand. The officer, by making a levy, gets a special property in the goods attached, defeasible by the plaintiff's failing in his action, or not levying the execution within the time prescribed, or by the satisfaction of the judgment before sale of the goods. ^ The general property remains in the debtor.' The owner of personal property attached upon a writ against him, which property is actually retained by the officer or his bailee, may transfer his interest therein, either absolutely or in mortgage, subject to the attachment lien.* And the attach- ing creditor gets a lien on the property levied upon, which lien secures it to be applied toward the satisfaction of the creditor's demand in the event of the same being established. He is a creditor in possession, but it is the service of the writ by the officer's levy upon the property that secures it. The mere lodgment of the writ in the hands of the officer will never bind the property.^ No title passes to the property seized until after judgment, execution, and a sale of such property there- under.^ It is for the purpose of acquiring such a lien upon, and con- trol over, the property of the debtor, to insure the satisfaction of the creditor's demand when legally established, that a levy must be made, and the levy can operate only upon the right of 1. Reed v. Penrose, 2 Grant (Pa.) 4. Wheeler v. Nichols, 32 Me. 233; Cas. 472. Starr v. Moore, 3 McLean (U. S.) 354. 2. Ladd V. North, 2 Mass. 514; Par- 5. Bethune v. Gibson, 2 Brev. (S. sons V. Phillips, 1 Root (Conn.) 481; C.) 501; Tomlinson v. Stiles, 28 N. J. Johnson v. Edson, 2 Aikens (Vt.) 299. L. (4 Dutch.) 201. 3. Ludden v. Leavitt, 9 Mass. 105 ; 6. Davidson v. Beatty, 3 Har. & M. S. P. Dillenback v. Jerome, 7 Cow. (Md.) 594; Owings v. Norwood, 2 (N. Y.) 294; Fettyplace v. Dutch, 13 Har. & J. (Md.) 96. Pick. (Mass.) 388. § 201 WHAT OFFICER TO MAKE THE LEVY. 371 the debtor existing at tlie time it is made. Any interest sub- sequently acquired by the debtor can not in any manner be affected by the seizure and return, when none was possessed by him at the time. If the levy of execution would not be effect- ual to pass any title of the creditor at the time the levy is made on an attachment, the levy on attachment can have no effect toward creating a lien.* The effect of the levy will be more fully considered hereinafter in a chapter entitled **The Lien Created by Attachment."^ § 201. What officer to make the levy. — In general, the levy is to be made, as a matter of course, by the officer to whom it is directed." This rule, however, has its modifications. Con- stables may make levies upon writs issued by justices of the peace, and in some states they are authorized to serve writs is- suing from the circuit courts on a demand not exceeding a stated amount.* And as a general rule the sheriff may serve all writs of attachment within his bailiwick, although the same might have been served by a constable. If a constable makes a levy and turns the property over to the sheriff, it seems the sheriff may thereby become himself responsible for the possession of the property, and not as bailee for the con- stable.* No officer who is interested in the suit in which the 1. Crocker V. Pierce, 31 Me. 177. 531; Drewry v. Lienkauff, 94 Ala. 2. Post, § 313. 486, 10 So. Rep. 352. 3. In Kentucky a writ of attachment Not in New Jersey. Weingardt must be executed by the officer to v. Billings, 51 N. J. L. 354, 20 Atl. 69. whom it is directed. It is unlike a 5. Joseph v. Henderson, 95 Ala. summons in this respect. Henderson 213, 10 So. Rep. 843. V. Specker, 79 Ky. 509. Under one statute a constable was It does not follow that, because two not authorized to levy an attachment or more counties compose one judicial on any property which was not ca- district, they are connected "for pable of manual seizure or a manual judicial purposes." An attachment, surrender by the defendant or his therefore, must be served by the bail. Wolbertv. Fackler, 32 Pa. St.452. sheriff of the county in which the It was held in one case that a con- property is situated. Sadler v. Tatti, stable could levy an attachment upon 17 Nev. 429, 30 Pac. Rep. 1082. property already in the possession of 4. Bnnsfield v. Austin, 39 Ala. 227; the sheriff under an execution, but Carter??. Palmer, (Ala.) 7 So Rep. that he had no right to remove it from the custody of the sheriff. Benson v,. 372 EXECUTION OF THE WRIT. § 201 writ issued can levy an attachment, although the writ be di- rected to him.* And it has been held that a sheriff could not serve a writ against a town in which he had ratable estate and was taxed, although he was not, at the time of making such service, a resident inhabitant of the town.'' And further, that a deputy sheriff could not serve a process in favor of a town in which he was ratably an inhabitant, although the sheriff under whom he acted was at the time an inhabitant of another town and had no interest in the town in favor of which the process issued.' All acts necessary to constitute a levy must be made by the same officer. Some can not be made by one officer and some by another.* When a levy is made by the officer author- ized by law to execute the writ, such levy will not be void be- cause of any mistake in directing the writ. Such error is amendable.® The sheriff may appoint a deputy for general purposes or for the especial purpose of serving that particular writ.® The sheriff and his deputy are considered one person in law.' And the powers of a deputy sheriff in serving writs are the same as the sheriff, except that he is not recognized or obeyed as a sheriff or known officer is, but must show his authority and make known his business, if required so to do by the party who is to obey the mandate in his hands.* The sheriff can serve an attachment against his deputy, but the deputy can not serve an attachment against the sheriff.' When the sheriff or his deputy is a party to the suit, a constable may serve the writ if the damage alleged is within the limit named by the statute for service by constables.*" Berry, 55 Barb. (N. Y.) 620. But see and return a writ of attachment, and as to "property in custodia legis," property by him attached is as much a7ite, § 46. in custody of the law as if attached by 1. McLeod V. Harper, 43 Miss. 42. the sheriff himself. Moore v. Graves, 2. Evarts v. Georgia, 18 Vt. 15. 3 N. H. 408. 3. Lyman v. Burlington, 22 Vt. 131. 7. Whitney v. Butterfield, 13 Cal. 4. Carroll County Bank v. Goodal, 335. 41 N. H. 81. 8. Burton v. Wilkinson, 18 Yt. 186. 5. Warren v. Purtell, 63 Ga. 428. 9. Ford v Dyer, 26 Miss. 243; In- 6. A person under twenty-one years graham v. Olcock, 14 N. H. 343. of age may be made a deputy to serve 10. Briggs v. Strange, 17 Mass. 405. § 201 WHAT OFFICER, TO MAKK THE LEVY. 373 Subsequent levies must be made by the same officer who made the former attachment, because he is regarded as having legal possession and control of the property.^ If the first proves to be insufficient and the proceedings are dismissed, the second levy will be good because the property is in posses- sion of the officer/ And although the first levy may be good, yet if the property attached more than satisfy the first attach- ing creditor, tlie remainder may, in some states, be held under the levy of the second writ.' But no lien upon the proceeds of a sale of goods under attachment by an officer can be created by a subsequent attachment, unless the subsequent attachment be made while the first is subsisting.* If several levies are made by the same officer, their priority will depend upon the time the levy is made, or upon the time when the officer began to hold under the subsequent writ. When tlie property is in his possession under one attachment no overt act is necessary to constitute a levy on a second writ. The second levy takes effect at the time the officer begins to liold under it, and his return on the writ is evidence of the time such levy is made.^ When the sheriff is incapacitated from serving a writ, the general rule is that such service must be made by a coroner; and a service in such case by the deputy of the sheriff is un- authorized and defective.^ Where there is no sheriff or coroner in the county a writ of attachment may be served by an elisor appointed by the court.' And where the writ has been served by the coroner, and an elisor has been appointed by the clerk, 1. Eogers v. Fairfield, 36 Vt. 641 ; trustees, included in the same process Bailey v. Ohilds, 46 Ohio State 557, 24 with the sheriff. Accordingly where N. E. Rep. 598. process of foreign attachment was in- 2. Coffin V. Smith, 51 Vt. 140 ; Wal- stituted against the sheriff and an- lace •;;. Berry, 51 Vt. 602. other person, and service of the writ 3. See ante, § 46, "Property in cus- was made by the deputy of the sher- todia legis." iff, and the sheriff pleaded such de- 4. Adams v. Lane, 38 Vt. 640. feet of service in abatement, it was 5. Corning v. Dreyfus, 20 Fed. Rep. held that the plea would operate to 426. abate the writ as to the sheriff, but 6. Ingraham v. Olcock, 14 N. H. not as to the other trustee. Ingraham 243. V. Olcock, 14 N. H. 243. But such a defect of service will not 7. McFarland v. Tunnel, 51 Mo. furnish ground of abatement to other 334. 374 EXECUTION OF THE WRIT. § 202 and the elisor serves the writ of replevin upon the coroner, it will be presumed that there was no sheriff to serve the writ/ When one, other than an officer, is directed to serve a writ, the mandate must be strictly observed; for where the writ was directed to any sheriff or coroner, ''or to George Brooks," no authority is conferred upon George Brooks to execute the writ.'' When an attachment is made by one appointed for that pur- pose, his return must be accompanied by the evidence of his appointment, because the credit to be given to his return de- pends upon the validity of the appointment.* If an officer empowers a stranger to make a levy and afterwards adopts it by his return, it becomes his own act and he will be held re- sponsible therefor.* The effort of a wrong officer to serve a writ may make him liable as a trespasser and render the levy void. But a writ legally and regularly issued and directed to the proper officer can not be avoided or made void by matters subsequent; or by having a return indorsed on it by an officer or person not authorized by law to serve it. Such indorsement is a mere nullity and imposes no obligation on the defendant to appear nor does it subject him to any legal consequences as for a default. Service by a coroner of a writ directed to a sheriff is no ground for dismissing the suit, although it is a matter which will excuse the defendant from answering.* As already shown,® a levy may be made by an officer in one county upon a writ issued from another county when the writ is properly directed and the officer can find property of the defendant within his bailiwick. § 202. Officer's duty to make the levy.'— A levy can not be made until the writ is actually delivered to the officer, and if he should before then undertake to seize property he becomes as much a trespasser as any stranger who interferes with the 1. Beach v. Schmultz, 20 111. 186. 5. Hughes v. Martin, 1 Ark. 386. 2. Brooks v. Fair, 51 Vt. 396. 6. See snpra. 3. Currens v. Ratcliffe, 9 Iowa 309. 7. As to "what property may be 4. Clarke v. Gary, 11 Ala. 98. reached," see ante, § 28. § 202 officer's duty to make the levy. -375 rights of a citizen.' It is by the authority with which the writ clothes him that he is enabled to seize a man's property with- out becoming liable as a trespasser, and it is a matter of great importance to him to know the limitations of the power vested in him by virtue of the writ in his possession. Such limita- tion will be considered presently, but first we must speak of his duty to obey the commandments of the writ. When the officer receives a writ of attachment to be executed, and not before, it is his duty to set about the performance of the acts which it commands; but he is not bound to start, upon the in- stant of his receiving the writ, to execute it without regard for anything else. Reasonable diligence in the service of writs is all that is required of him, and what is reasonable diligence depends upon the particular facts of each case.' An officer is only required to exercise such reasonable discretion as would influence the conduct of prudent and discreet men in the man- agement of their own affairs." In making a levy upon chattels it is his duty to proceed to remove them or take them into his custody (in the manner shown herein below), with all con- venient speed, otherwise he and his official bondsmen will be liable for his negligence. A delay of seven hours in the re- moval of furniture from a dwelling, or taking steps toward its removal, is too great.* It has been held in one case that where he neglected for four hours to remove a desk, books and other office furniture, and when, because of such delay, the closing time came and he was locked in the office, that he could not maintain an action for false imprisonment. It was his duty to have removed the chattels within a reasonable time.^ 1. Wales V. Clark, 43 Conn. 183. 3. Dewitt v. Oppenheimer, 51 Tex. 2 Whitney v. Butterfield, 13 Cal. 103. 335' 4. Davis V. Stone, 120 Mass. 228. Where one writ came into a sheriff's 5. AVilliams v. Powell, 101 Mass. 467. hands on Sunday and another into the The fact that the defendant becomes hands of his deputy, on Monday bankrupt more than four months after morning, which was served before the the issuance of the writ does not ex- one the'k in the sheriff's possession, cuse the sheriff, in whose hands the the sheriff was not deemed guilty of writ was placed for service, for neglect negligence when he did not know of in serving it. Carlisle u.Soul's Estate, the circumstance. 44 Vt. 265. 376 EXECUTION OF THE WRIT. § 202 When a sheriff has received a writ, and it is in his custody and control, it is not necessary that he should have the writ on his person when he makes a levy under it.^ But a deputy sheriff is not recognized or obeyed as a sheriff or known officer is, but must show his authority and make known his business if required so to do by the party to be affected by it.'' There- fore he should have the writ with him in order that the same may be exhibited if necessary. An officer can not refuse to serve a process regularly issued to him because in his opinion it is defective or irregular.^ Nor because he knows it to have been maliciously sued out. He must serve it, or he will be liable to the plaintiff.* A writ, which is irregular and voidable only, protects the officer in all acts which it commands him to do, and which he does before it is judicially declared to be void.^ It commands him to do certain acts and he must obey. If he fails to do so he is liable to the plaintiff who procured it to be sued out. But if the writ is absolutely void he is not required to serve it.^ It is there- fore incumbent upon the officer, when the writ is first placed in his hands, to see that it is in due form of law, and that it is issued by an officer having legal power to issue writs of attach- ment.' Where two writs against the same person are placed in the hands of the same officer it is his duty to first make a levy upon the writ which first came into his hands, unless he is otherwise directed.* The first levy gives the prior lien.^ But when several attachments are made on the same day, and there is nothing in the officer's return nor on the face of the proceed- 1. Barney v. Rockwell, 60 Vt. 444, 7. The extent of his protection will 15 Atl. Rep. 163. be considered in the next two succeed- 2. Burton v. Wilkinson, 18 Vt. 186. ing sections. 3. Roth V. Devall, 1 Idaho 149. As to what officer is legally author- 4. Rice V. Miller, 70 Tex. 613. ized to issue writs of attachment, see 5. Ela V. Shepard, 32 N. H. 277; ante, ^ 194. McFadden v. Whitney, 51 N. J. L. 8. Bragg v. State, 30 Ind. 427. 391_ 9. Crowningshiel v. Strobel, 2 6. Stevenson v. McLean, 5 Humph. Brev. Pt. 1 (S.O.)80. Seealso/'When (Tenn.) 332; Reams «. McNail, 9 Officer Should Make the Levy," § 205, Humph. (Tenn.) 542. below. § 202 officer's duty to make the levy. 377 ings to show which was the first one served, it will be pre- sumed that they were served at the same time; but if the levies are shown to have been made at a different time of the same day, they will take precedence according to the priority of serv- ice.* And where there are several levies which have been made at the same time there should be a distribution, pari passu.^ In case there should be several levies by the same officer, the priority is determined by the time of the levy or by his commencement to hold under subsequent processes.^ As before shown,* property in custody of one officer can not be attached by another officer. And when an officer knows that there is a subsisting valid attachment he can not attach it, although the property is being used by the debtor, if he is using it merely for his temporary convenience, under a contract of bailment of the property with the sheriff making the attach- ment. But where a sheriff merely knows that property in pos- session of the debtor has been attached, such knowledge will not prevent him from making a valid attachment.' If differ- ent officers make successive levies upon the same chattel, the return of each will be prima facie evidence of the attachment made by him, but the officer making the second levy may show by other evidence that the officer making the first levy did not have the chattel in his possession or under his control at the time of the second attachment, and this will establish the valid- ity of such second levy, and be a justification of the officer making it.* When the officer receives a writ on Sunday it is not to be considered as officially received by him on that day, but he can retain it and consider that it is officially in his possession when Sunday has expired.' The duty of the officer to make a levy continues so long as 1. Ginsberg v. Pohl, 35 Md. 505. 5. Young v. Walker, 12 N. H. 502; 2. Nutter v. Connett, 3 B, Mon.(Ky.) Chadbourne v. Sumner, 16 N. H. 129. 199. 6. Bruce v. Holden, 21 Pick. (Mass.) 3. Corning v, Dreyfus, 20 Fed. Rep. 187. 426. 7. Whitney v. Butterfield, 13 CaK 4. See ante, f S, "Property in cus- 335. todia legis." 378 EXECUTION OF THE WRIT. § 203 the writ is in his possession, and although the defendant may not have had property subject to levy when the writ was first received b}^ the officer, and although that fact may have been indorsed on the writ, yet, if subsequently thereto and before the return the defendant acquired such property, or if further search by the officer discloses such property, it is the officer's duty to levy upon it.* § 203. Officer may require bond of indemnity when. — When an officer is directed to serve a writ and there is a reasonable doubt that the title to the property is in the defendant, the of- ficer may demand an indemnifying bond from the creditor be- fore he levies upon the property ; and if such bond of indem- nity is not given, the officer is under no obligation to make a levy upon the property.^ Where the defendant's property in the goods is disputed, the sheriff has a common law right to require indemnity before seizing the property.' When the property which the officer is directed to seize is not in posses- sion of the defendant but is in possession of a third person, and there is reason to doubt that the defendant owns such prop- erty, the sheriff may lawfully require a bond of indemnity be- fore he makes the attachment.* If the property is attached without any controversy as to the title and is afterwards claimed by a third person, the officer may then demand a bond of indemnity before he proceeds any further.^ A bond of in- 1. Courtney v. Carr, 6 Iowa 238. such a bond it can not be enforced. As to "When the officer should Wadsworth v. Walliker, 51 Iowa 605. make the levy," see post, §205. If the statute requires the indemni- 2. Smith V. Cicotte, 11 Mich. 383 ; fying bond to be under seal, such a Smith V. Osgood, 46 N. H. 178. bond can not be executed by an agent 3. Shriver v. Harbaugh, 37 Pa. St. unless his authority so to do is also 399. under seal. St. Louis Dairy Co. v. Such indemnity protects the sheriff Sauer, 16 IMo. App. 1. and through him the garnishee, where 4. Chamberlain v. Seller, 18 N. Y. he is made the sheriff's bailee during 115. the pendency of the process. Shriver 5. Smith v. Osgood, 46 N. H. 178, V. Harbaugh, 37 Pa. St. 399. While an officer is not bound to The officer has no right to demand make an attachment where the title is an indemnifying bond in a greater in doubt, yet if he has made such an sum than is necessary to secure him, attachment and having thereafter de- and should the plaintiff agree to give manded an indemnifying bond, and §204 OFFICER PROTECTED IN HIS OFFICIAL ACTS. 379 demnity, executed after the levy for the purj>ose of protecting the officer, is valid.* But a sheriff can not, before levying an attachment, demand a bond of indemnity on a ground of de- fects in the bond on which tlie attachment issued.^ Any agreement made with or security executed to a sheriff or other officer to induce him to omit the making of the levy on the writ, or the performance of any other duty, will not pro- tect the officer against the party in whose suit the writ issued. The agreement being without consideration, so far as the officer is concerned, can not be enforced by him. All such contracts are void from considerations of public policy, and whether it is in his hands or is attempted to be enforced for his benefit, it is utterly void.' A promise to indemnify the officer for mak- ing a lawful levy is good, but a promise to indemnify him for not making a levy can not be enforced.* § 204. Officer protected in his official acts. — The general lias received the same, he can not release the property without making himself liable to the plaintiff, unless the property was in fact exempt from attachment. Wadsworth v. Walliker, 50 Iowa. 605. If exempt property has been at- tached, the giving of an indemnity bond by the plaintiff does not prevent the officer from returning the property to the defendant. State v. Thomas, 7 Mo. App. 205. 1. Dewitt V. Oppenheimer, 51 Tex. 103. 2. Shaw V.Holmes, 4 Heisk. (Tenn.) 692. Neither can he make a return nulla bona because a third person claims the property and the plaintiff will not in- demnify. Shaw V. Holmes, 4 Heisk. (Tenn.) 692. When the sheriff justifies his re- fusal to make a levy, or his restora- tion of the property after a levy lias been made, upon the ground that the defendant has transferred the prop- erty, he assumes the burden of proof that the transfer was bona fide and ef- fectual in law for the purpose for which it was made. Smiths. Leavitts, 10 Ala. 92. An officer who has been instructed to make a levy, and having reason to doubt that the goods are the property of the debtor, may not only require that he be indemnified for any mis- take he may make in conforming to the creditor's instructions, either in his levy on attachment or in seizing them on execution, but he may also insist that the creditor show the goods to him. For if, without making any such claim or request, he under- takes to execute the precept as well as he can, he will render himself an- swerable for not attaching the goods, when in his power, in case the cred- itor proves to have been injured by his neglect. Bond v. Ward, 7 Mass. 123. 3. Cole V. Parker, 7 Iowa. 167. 4. Denson v. Sledge, 2 Dev. (N. C.) 136. If, however, the indemnit.v bond 380 EXECUTION OF THE WRIT. § 204 rule is that a process regular on its face, wliich issued from a court of competent jurisdiction, is a sufficient protection to a ministerial officer acting under it/ although it may have been issued without authority.^ Mere irregularity in the issuance of a writ of attachment does not lessen its protection of the officer serving it, as a general rule. In Wisconsin, however, it is necessary that such officer be without knowledge of such ir- regularity.^ The process, though irregularly issued, will justify the officer acting under it at any time before it is vacated.* But the protection extends only to the officer who acts under it in the discharge of his public duty. It is no protection to creditors, or parties procuring the writ to be issued, for taking and detaining property under it.® As soon as an attachment contains any proviso or condition pre- cedent, such for instance as tliat the sheriff would give notice to the plaint- iff in order that he might defend if an action was brought by the claimants of the property, the sheriff can not re- cover on his bond against the plaintiff unless he complies with such condi- tion. Preston v. Yates, 24 Hun (N. Y.) 534. The officer can not maintain an ac- tion on his indemnifying bond where he has failed to return the writ under which the attachment was made. Wig- gin V. Atkins, 136 Mass. 292. Under a statute providing for the taking of an indemnity bond stating that the sheriff shall not be liable for any damages or injury sustained by the claimant in consequence of such attachment, it was held that where such a bond was taken and the suit thereafter dismissed, the claimant's remedy was by an action on the bond and not by an action of trespass. Paddock-Hawley Iron Co. v. Mason, 16 Mo. App. 320. See also St. Louis Dairy Co. v. Sauer, 16 Mo. App. 1. On the contrary, it is held in New York that where a wrongful attach- ment has been made after the defend- ant has given an indemnifying bond to the plaintiff, the liability of the plaintiff rests upon the wrongful tak- ing of the property and not upon the bonds, nor is it governed by the con- ditions of the bonds. Dyett v. Hy- man, 29 N. E. Rep. 261, 129 N. Y. 351. 1. Levying an attachment is a min- isterial act. Matthews v. Ansley, 31 Ala. 20. 2. Noble V. Holmes, 5 Hill (N. Y.) 194; Brichman v. Ross, 67 Cal. 601; Fall Creek, etc., Co.. v. Smith, 71 Pa. St. 230. 3. Bogart v. Phelps, 14 Wis. 88; Grace v. Mitchell, 31 Wis. 533. In such a case he may refuse to jjroceed without indemnity from the plaintiff. Grace v. Mitchell, 31 Wis. 533. 4. Ela V. Shepard, 32 N. H. 277; Matthews v. Densmore, 109 U. S. 216; McFadden v. Whitney, 51 N. J. L. 391. 5. McFadden v. Whitney, 51 N. J. L. 391; Wehle v. Butler, 35 N. Y. Super. Ct. 1. § 205 WHEN THE OFFICER SHOULD MAKE THE LEVY. 381 is set aside the plaintiff stands as if no process had ever been issued. He becomes a trespasser ab initio.^ It may be necessary for the officer to justify his levy by proof that he acted under a valid writ, but the proper consideration for this phase of the subject would be in an article on the ''Liability of Executive Officer.'" §205. When the officer should make the levy.— An officer can not make a valid attachment before the writ comes into his possession. The making of a levy according to directions by telegram before receiving the process which is sent by mail renders the attachment void and the officer liable as a tres- passer.^ There is no legal objection to the delivery of a writ of attachment being made to the sheriff on Sunday, but it can only be considered to be officially in his hands when Sunday has expired.* It is almost a universal rule that the service of a writ of at- tachment on Sunday is void.^ But in Alabama, on the theory that while a judicial act can not be performed on Sunday, yet a ministerial act may be ; and because a levy by a proper officer is a ministerial act, it is held that although it is irregular to issue a writ of attachment on Sunday it may be levied or served on that day.^ In Missouri, to warrant the making of a levy 1. Lyon V. Yates, 52 Barb. (N. Y. For a historical and metaphysical Supr ) 237. consideration of the duration of time But the fact that the property has deemed to be Sunday, see Fox v. since been subjected to a valid execu- Abel, 2 Conn. 541; Geer v. Putnam, tion in his favor maybe shown in a 10 Mass. 312; Pearce v. Atwood, 13 suit against him for damages. Lyon Mass. 324, 347 ; Delamater v. Miller, V. Yates, 52 Barb. (N. Y. Supr.) 237. 1 Cow. (N. Y.) 75, note (a); Hogh- 2 Post §399 taling v. Osborn, 15 Johns. (N. Y.) 3'. Wales V. Clark, 43 Conn. 183; 119; Story v. Elliot, 8 Cow. (N. Y.) Taylor ^;. Evans, (Tex. Civ. App.) 29 27; Morgan v. Richards, 1 Browne S. W. Rep. 172. (Pa.) 171. 4. Whitney v. Butterfield, 13 Cal. 6. Matthews v. Ansley, 31 Ala. 20. 335; Johnson v. Day, 17 Pick. (Mass.) ' In this case the writ was actually 106 109 issued on Sunday, but it appeared on 5! Van Vechten v. Paddock, 12 its face to have been on a secular Johns. (N. Y.) 178 ; Butler v. Kelsey, day. It was held that the court could 15 Johns. (N. Y.) 177; Morris v. not command the clerk to correct the Shew, 29 Kan. 661 ; Tracy v. Jenks, date, and then quash on motion on 15 Pick. (Mass.) 465, 467; Blair v. account of its irregularity. Matthews Shew, 24 Kan. 280. ^'- Ansley, 31 Ala. 20. 382 EXECUTION OF THE WRIT. § 205 on Sunday, the affidavit must state "that the debtor is about fraudulently to secrete or remove his effects.'" Although a levy may not be made on Sunday, yet if it be legally begun on Saturday it may be completed at the first con- venient time after, before the time of service expires.^ From the fact that a writ properly issued can not be vitiated by any irregularity in the officer in executing it,' the proper course to pursue when a levy is irregular, because of having been made on Sunday, is to move the court to set it aside for such irregularity.* Or it may be pleaded in abatement. But (at least in Alabama) the fact that a service of process was made on Sunday does not render a judgment by default either void or reversible.* The levy must, of course, be made within the time allowed by the statute for the serving of the writ, for a levy made after the return day will not create a lien.^ In computing the time in which a writ must be served the return day must always be excluded, and if that day falls on Sunday it is to be regarded as dies non juridicus? And when the time of service under 1. Updyke v. Wheeler, 37 Mo. App. 5. Comer v. Jackson, 50 Ala. 384. 680. See as to "Dissolution," post, § 326. In Kansas an officer had two writs, 6. Nance v. Barber, 26 S. W, Rep. and served one on Sunday by taking 151. the property in his possession for the The writ may be served any time purpose of holding it until he could before it is returnable, even though make a valid levy. On Monday, the sheriff may have indorsed on the while the property was still in his writ the fact that the defendant had possession under the first, he served no property, that being true at the the second and also returned the first time the indorsement was made, yet nulla bona, procured an alias and if the defendant subsequently and be- served it. It was held that the writs fore the return of the writ acquired served on Monday were not absolute- property, or if further search discloses ly void and that their validity could property belonging to him, it is the not be questioned in an action of re- duty of the officer to attach it. Court- plevin brought by the owner against ney v. Carr, 6 Iowa 238. the officer, Blair v. Shew, 24 Kan. 7. Baxley v. Bennett, 33 Ga. 146. 280. In Indiana writs of attachment do 2. Pearson v. French, 9 Vt. 849; not fall within the rule of personal Fifield V. Wooster, 21 Vt. 215. writs, but may run until executed ; or 3. Davidson v. Owens, 5 Minn. 69. at least until it can be executed by 4. Cotton V. Huey, 4 Ala. 66. reasonable diligence. AVill v. Whit- § 205 WHEN THE OFFICER SHOULD MAKE THE LEVY. 383 the statute expires on Sunday, service made upon it the next day is valid. * And if a statute requires that a writ must be served a certain number of days before the return day, both the day of service and the day of return must be exckided. The required number of days must be full days.' The require- ment of a statute that an attachment shall be made within a certain number of days is not affected by the fact that the de- fendant prevented personal service within that time by remain- ing in seclusion in a hotel under an assumed name. If the levy is not made within the required time it will be vacated." If a statute forbids the service of a writ more than a stated number of days before the return day named therein, and the writ comes into the hands of the officer more than such num- ber of days before the return day of it, it is his duty, under the statute, to omit making any service thereof until within such number of days before the return day. For if he attach property upon the writ more than such number of days before the return day, he is not justified by the writ, and acquires no title to the property against an officer who subsequently takes the same property legally into his possession.* Although the controlling statute may require the issuance of a summons in the case because the principle that the writ of attachment is in aid of the writ in the main action, yet if the summons has been made out and is in the hands of^ the person authorized to serve it and with a view to service, it is issued, and a writ of attachment may be served before the actual service of the summons.® ney, 15 Ind. 194. See also as to Wis- cused. See Geigesu. Greiner, 68 Mich. consin, Chase v. Hill, 13 Wis. 222, and 153, 36 N. W. Rep. 48. North Carolina, Hyatt v. Simpson, 13 3. Ludwig v. Blum, 18 N. Y. S. 69, Iredell (N. C.) L. 72. 63 Hun (N. Y.) 631. 1. Gribbon v. Free!, 93 N. Y. 93. 4, Nelson v. Denison, 17 Vt. 73. 2. Snell V. Scott, 2 Mich. N. P. 108. And the fact that the debtorneg- The rule, that when by statute an lected to appear at the time set for act is required to be done in any num- trial in the first writ, and object to the ber of days less than a week, Sunday irregularity of the service does not is to be excluded, was applied to the alter the case. Nelson v. Denison, 17 peculiar circumstances of this case. Yt. 73. Snell V. Scott, 2 Mich. N. P. 108. 5. Bell v. Olmsted, 18 Wis. 69; Cor- Delay in levying an execution ex- son v. Ball, 47 Barb. (N. Y.) 452; Mills 384 EXECUTION OF THE WRIT. § 206 The power to make a levy, however, does not survive the recovery of a judgment in the main case. ''The attacliment is spent and becomes powerless the instant the judgment is en- tered." The judgment supersedes the attachment, and a writ of execution and not of attachment must then be served.* A levy on an attachment writ may be made notwithstand- ing the fact that a sale of the property levied upon may have been negotiated, if such levy precede the legal delivery.'' But if the officer making the levy is offered by the vendee the amount of the claim in the attachment and is asked to return the goods, he must accept it and restore them, or he will be guilty of a conversion.' A levy can not be made upon property after a receiver has been appointed to take charge of it, even before he has filed bis bond. It is in custody of the court.* § 206. The amount of property to be secured by levy.— It is the duty of the officer, when particularly instructed, to seize the specific property designated; but when a general writ is placed in his hands without specific instruction he is bound to attach sufficient property to secure the payment of what may finally be recovered, provided that property belonging to the defendant can be found to such an amount. And while he will be liable as a trespasser^ if he attach any property not be- longing to the defendant, yet personal property found in the j)OSsession of the debtor may be presumed to be his, if nothing appears to the contrary. And if the officer omits to attach such property, the burden of the proof will be upon him to V. Corbett,8 How. (N.Y.)Pr.500. See 4. Regenstein v. Pearlstein, 30 S. Durkhardt v. Sanford, 7 How. (N.Y.) C. 192, 8 S. E. Rep. 850. Pr.329; Central Sav. Bank Co. -y. Lan- A levy is void in an action in at- genbach, 1 Ohio N. P. 124. tachnient commenced in one county, 1. Schi'eb v. Baldwin, 22 How. (N. after the appointment of a receiver in Y.) Pr. R. 278; Lynch v. Crary, 52 N. a suit in another county against the Y. 181. same defendant, although the receiver 2. Judson V. Lewis, 7 La. Ann. 55. did not qualify and take possession But the officer must take possession until after levy. TexasTrunk Ry. Co. of the property. Crisman v. Dorsey, v. Lewis, 81 Tex. 1, 16 S. W.Rep.647. ]2Colo. 567, 21Pac. Rep.920. 5. See post, § 387, "Liability of 3. Klinck v. Kelley, 63 Barb. (N. Executive Officer." Y.) 622. >§ 206 AMOUNT OF PROPERTY TO BE SECURED BY LEVY. 385 show that in fact it was not the property of the debtor. If there be one external indicia of ownership in the debtor, the officer can not be excused from making an attachment, when necessary to the security of the creditor, by anything but eventual proof that the property did not belong to the debtor; or, in case of reasonable ground of suspicion by refusal of the -creditor to furnish an indemnity bond.^ The amount of the property seized is within the sound dis- cretion of the sheriff, and he is responsible to both the plaint- iff and the defendant for the exercise of a sound and reasonable discretion in performing his duty. The plaintiff has no more right to dictate the extent of the levy than the defendant has to limit it.^ The officer commits a flagrant wrong by depriving the defendant of the use of more property than is reasonably sufficient to secure the plaintiff's demand, and if the officer seize such an unreasonable amount it is said that he commits as flagrant a wrong as if he had seized the property without any process whatsoever. It is a wrongful abuse of the writ to willfully seize, for the benefit of the creditor, more than the writ commands.' The attachment is not void because the officer attached prop- erty to a greater amount than the writ commands him to do. The officer will hold such property against a subsequent pur- chaser,* until the levy is released by order of court. It is not even void as to the excessive portion, so as to prevent the title from passing to the purchaser at the sheriff's sale, as against one claiming under the attachment debtor by a sale subsequent to the levy.^ When a levy has been excessive, the remedy of the attach- ment debtor, or his assignee, is by application to the court, 1. Bradford v. IM'Lellan, 23 Me. 302 ; erty to the full amount of his demand see also ante, § 203, "Bond of Indem- unless he choose to do so. Dwyer v. nity." Testard, 65 Tex. 432. 2. Fitzgerald v. Blake, 42 Barb. (N. 4. Merrill v. Curtis, 18 Me. 272. Y.) 513. 5. McConnell v. Kaufman, 32 Pac. 3. Hilliard v. Wilson, 65 Tex. 286. Rep. 782, 5 Wash. St. 686. The plaintiff need not seize prop- Att. 25 386 EXECUTION OF THE WRIT. § 206 from which the attachment issued, to release tlie levy insomuch as it is excessive/ The court is authorized to reduce the ex- cessive levy, by allowing the attaching creditor to elect on which sufficient property he will retain the levy. When there are several defendants claiming different rights, and no such election has been made, the court may proportion the burden of the debt upon the different defendants. And each defendant may replevy the property claimed by him or become the re- ceiver of it by giving proper bond.* However, the fact that the value of an article of property is much greater than the sum for which an attachment is to be made, does not make it neces- sary that the officer should wait to see whether another article nearer to the amount of the claim in value is free from encum- brance and may be held. If the officer attaches an article of much greater value than the creditor's claim he is not bound to take a receipt and release the proj^erty attached; if he does so without the creditor's consent he becomes liable to the creditor at all events for the property, but such receipt would be a legal contract if it were taken. Neither is the officer bound, upon request, to accept the deposit of a sum of money for his security equal to the claim, from a third party, nor to take other prop- erty of the debtor as a substitute for that attached, and release it. If directed he must attach personal property, and can not excuse himself by attaching real property, although the debtor owns such property. If he should fail to secure a debt, by delaying to examine the title, he would become responsible to the attaching creditor.' The fact that the property taken is of small value does not necessarily avoid the levy of attachment.* 1. McConnell v. Kaufman, supra. 3. Moulton v. Chadborne, 31 Me. 2. Hughes V. Tennison, 3 Tenn. Ch. 152. 641. As to "Bond for Release" see 4. Thornton v. Winter, 9 Ala. 613. post, § 286. If the levy is fictitious and color- Themeasureof damages in an action able, it may be quashed by the court against a receiptor, where some to which it was returned on motion articles are replevied and the re- for that reason. Thornton v. Winter, mainder are worth more than the 9 Ala 613. See as to Louisiana, Bodet valuation in the receipt, will be the v. Nibourel, 25 La. Ann. 499. valuation named. Spear v. Hill, 52 N. H. 323. § 207 MANNER IN WHICH THE LEVY SHOULD BE MADE. 887 Where an officer makes a return, upon a writ of attachment, that he has attached certain goods, and does not fix their value, the presumption of Law is, in the absence of all other testi- mony, that they were of the value commanded to be attached/ § 207. The manner in which tlie levy should be made— (a) Generally. — ^Whenever there is any special statutory provision regarding the manner in which the levy shall be made, it must be strictly observed, for, even though the requirement be small, a departure from it will render the levy void."* The matter of, making a proper levy is one of importance, because it is the levy and not the return on the writ which gives the court juris- diction of the property.' The service of a copy of the writ upon a person in charge of the goods and informing him of the character of the papers without any further steps being taken does not constitute a levy.* In general, an attachment can only be made either by an actual seizure and detention of the property or by garnishment: that is, service of citation upon the defendant's debtor.* And f there is no such thing as a partial service of the process. It | must be either full and complete to the requirements of the j statute, or there is no service at alL** The actual seizure of the property is alone the basis of the attachment and the jurisdic- tion of the court, when there is no garnishment. The sheriff must take the property into his actual custody or control and hold it until it is seized under execution after judgment, 1. Childs V. Ham, 23 Me. 74. ner in which the levy shall be made, 2. Marnine v. Murphy, 8 Ind. 272; see Campbell v. Case, 46 N. W. Eep. Schneider v. Sears, 13 Or. 69. 604, 1 Dak. 17. Under one statute, in order to make 3. Eowan v. Lamb, 4 G. Greene a valid levy upon personal property, (Iowa) 468. it was not only necessary that the 4. Miles v. Brown, 38 N. Y. Super, officer take the property into his pos- Ct. 400. session, but that he should go to the 5. Nelson v. Simpson, 9 La. Ann. place where the property was situate 311, and there declare in the presence of a As to service of garnishee process, citizen of the county, that he attached see post, Vol. II. it. Gibson v. Wilson, 5 Ark. 422. 6. Buckingham v. Osborne, 44 Conn. For a historical comparison of the 133. Dakota statutes prescribing the man- 388 EXECUTION OF THE WKIT. § 207 unless he is sooner ordered to release it by the court.^ It is not necessary that the officer should handle the goods at- tached, but he must be in view of them, with the power of con- trolling them and of taking them into his possession.^ It is a general rule that to constitute a valid levy the officer must do such overt act as would, but for the protection of the writ, render him liable as a trespasser.^ And the only exception to this rule is that when the officer is in actual or constructive possession of goods once attached, no overt act of his is neces- sary to attach them on other writs. He has only to make a return on such writs that he has attached the goods.* But his return must show that he has taken the property into his pos- session and custody; the statement that he has attached * 'ac- cording to law" is not sufficient.* If the officer has bailed the goods for safe keeping to a stranger, who has delivered them to the debtor, the officer has not even constructive possession, and in such case he must make an actual seizure of them to constitute a second attachment.* He must not, however, go outside of the authority vested in him by the writ; for a levy effected by committing a trespass is bad,' and will be dis- 1. Scott V. Davis, 26 La. Ann. 688; Patten, 18 Me. 231. Gumbel V. Pitkin, 8 Sup. Ct. 379; Merely making an oral agreement Adlerv.Roth,2McCrary,(U.S.C.Ct.) with the debtor that the attaching 445 ; Lane v. Jackson, 5 Mass. 157 ; creditor shall take charge of it as re- Lyman v. Lyman, 11 Mass. 317; Phil- ceiptor, without any apparent change lips V. Bridge, 11 Mass. 242 ; Knap v. of possession, will not be good levy as Sprague,9 Mass. 258; Vinton v. Brad- against a subsequent levy of t^nother ford, 13 Mass. 116 ; Bridge v. Wyman, attachment on the same property. 14 Mass. 190; Gale v. Ward, 14 Mass. Mahon v. Kennedy, (Wis.) 57 N. W. 352; Odiorne v. Colley, 2 N. H. 66; Rep. 1108. Huntington v. Blaisdell, 2 N. H. 317 ; 3. Alen v. McCalla, 25 Iowa 464. Pomeroy v. Kingsley, 1 Tyler (Vt.) 4. Bullitt v. Winston, 1 Munf. (Va.) 294; Dunklee v. Fales, 5 N. H. 527; 269; Turner v. Austin, 16 Mass. 181; Bagleyu. White, 4 Pick. (Mass.) 395; Whittier v. Smith, 11 Mass. 211; Hollister v. Goodale, 8 Conn. 332; Thompson v. Marsh, 14 Mass. 269; Anon., 2 Hayw. (N. C.) 73; Taylor v. Patterson ^^ Spaulding, 5 La. Ann. 172. Evans,(Tex.Civ. App.)29S.W. Rep. 5. Kilbourne v. Frellsen, 22 La. 172. Ann. 207. See as to "Return," posf, 2. Nichols V. Patten, 18 Me. 231. § 223. And in case of an attempt by an- 6. Knap v. Sprague, 9 Mass. 258. other to interfere or take possession, 7. Bailey v. Wright, 39 Mich. 96; he should take such measure as to pre- Closson v. Morrison, 47 N- H. 482. vent it unless resisted. Nichols v. § 207 MANNER IN WHICH THE LEVY SHOULD BE MADE. 389 charged on motion.* Furthermore, the officer also lays himself and his bondsmen liable to an action for damages.^ Likewise a levy effected by fraud and deceit will be set aside on motion and the officer making it will be liable for the damages.' As where a slave was decoyed into the jurisdiction of the court and there attached ; * or where a debtor residing in another state was induced to bring property into this state (which is exempt in the other state), and the property is here attached;* or where the creditor fraudulently obtains possession, in an- other state, of the proj)erty of his debtor residing there, and without the knowledge or consent of such debtor, brings it into this state and immediately causes it to be attached;® or where the sheriff in one county seized the property, pretending that he seized it by virtue of a writ of attachment, carried it back to his own county, where he made a formal levy under a writ in his possession.' But where the officer watched the defend- , ant until another person enticed him out of the state and then! made service of a writ by levying upon him the attachment, ( the service was held void upon plea in abatement.* But it was not a fraud where a person paid a pawnee the amount due upon a watch in Kentucky and took it into Tennessee, where an attachment was brought by a plaintiff subject to the amount of such person's claim, there being no collusion between such person and the plaintiff. There was no wrongful act on the part 1. Pomroy v. Parmlee, 9 Iowa 140. 108; Paradise v. Farmers' Bank, 5 La. 2. See post, § 386, "Liability of the Ann. 710. Officer." 7. Pomroy v. Parmlee, 9 Iowa 140. 3. Pomroy v. Parmlee, 9 Iowa 140; A somewhat similar case, see Upton Metcalf V. Clark, 41 Barb. (N. Y.; 45. v. Craig, 57 111. 257. 4. Timmons v. Garrison, 4 Humph. 8. Nason v. Esten, 2 R. I. 337. (Tenn.) 148. As to false and fraudulent allega- 5. Deyo v. Jennison, 10 Allen tions of citizenship to obtain jurisdic- (Mass.) 410. tion in a federal court, see Gilbert v. In this case the plaintiff made the Hollinger, 14 La. Ann. 441. fraudulent inducement and the officer And as to the fraudulent induce- knewnotof it, and yet both the officer ment to procure the discharge of an and the plaintiff were held to be tres- order holding property in a sister passers. Deyo v. Jennison, 10 Allen state, that it might be attached in this (Mass.) 410. state, see Paradise v. Farmers', etc., 6. Powell V. McKee, 4 La. Ann. Bank, 5 La. Ann. 710. 590 EXECUTION OF THE WRIT. §207 of the creditor such as there was in enticing a slave within the jurisdictional limits of the court in the case above referred to/ The levy must be actual, for the mere pretense of a levy is void." The statutes generally authorize the property of the debtor to be attached, no matter in whose hands it may be found.' When the officer obtains access and control of personal prop- erty of the defendant, the levy is complete.* But an officer is not authorized by a precept against one person to levy upon the property of another;* although of the same kind as that sought under the writ ; and though the defendant has lately sold it.^ In serving attachments, either foreign or domestic, the officer has no authority to take goods out of the possession of one who claims property in them.' He is not justified in taking prop- 1. National Bank v. Winston, 5 Baxter (Tenn.) 685. Compare Tim- mons V. Garrison, 4 Humph. (Tenn.) 148. The bare removal and immediate return to the debtor of attached prop- erty is not suflacient to repel pre- sumption of fraud arising from the debtor's possession. Burrows v. Stod- dard, 3 Conn. 160. 2. Gates v. FHnt, 39 Miss. 365. In a suit against a non-resident de- fendant, commenced by attachment, a pretended levy on property to which the defendant has no claim, will not have the effect of constructive notice, so as to authorize the court to render judgment against such non-resident. Grier v. Campbell, 21 Ala. 327. 3. Unless in custodia legis or under bailment. See ante, §§ 41 and 46. 4. Walton v. Deignan, 2 Nott. & M. 248; Morse v. Hurd, 17 N. H. 246; but see Lewis v. Birdsey, 26 Pac. Rep. 623, 19 Or. 164. When personal property is not in the actual possession of any one, it is in constructive possession of the general owner. Taintor v. Williams, 7 Conn. 271. 5. Tufts V. McClintock, 28 Me. 424. 6. Wilson V. Paulsen, 57 Ga. 596. If a commodity is priced and bar- gained for in such quantity as will make a cargo for a certain vessel brought by the purchaser to carry it away, and it is to be paid for by the bushel, the parties may, if interfered with, stop, by mutual consent, with less than a cargo on board ; and in that case the delivery will be com- plete as to so much as is actually on board under the exclusive control of the purchaser. Wilson v. Paulsen, 57 Ga. 596. See, as to "Liability of the Officer, '>osf, §387. 7. Moore v. Byne, 1 Rich. L. (S. C.) 94. Service of the writ upon one who has the custody of the assets of the absent debtor, is sufficient to create the attachment lien, without actual seizure of such assets by the officer. Renneker v. Davis, 10 Rich. (S. C.) Eq. 289. Goods stored in a warehouse may be levied upon without making the warehouse keeper a party to the at- tachment suit. Trounstein v. Rosen- ham, 22 La. Ann. 525. § 207 MANNER IN WHICH THE LEVY SHOULD BE MADE. 391 erty out of the possession of a garnishee who claims either in his own right or in the right of another.* A levy which is not sufficient in itself may have been made so, by some conduct of the defendant operating by way of es- toppel or agreement, and yet not be good as to third persons.^ To make a valid and effective levy as against subsequent attach- ing creditors, the general rule of law, founded upon the princi- ples of evidence and policy, requires achange of possession and an actual removal of the property attached; but where the re- moval would be attended with great waste and expense, it may be dispensed with. The officer must, in such case, exercise due vigilance to prevent it from going out of his control, al- though it is not necessary that there should be a continual presence of himself or his agent with the property.* But where personal property is capable of manual delivery, and the officer does not take it into possession, he acquires no special property therein,* and the levy will be set aside. ^ The officer must as- sume dominion over the property. He must not only have a view of it, but he must assert his title to it by such acts, as but for the process would make him liable as a trespasser.^ To 1. Berry v. State, Dudley (S. C.) S.Mills v. Camp, 14 Conn. 219; 215 ; Moore v. Holt, 10 Gratt. (Va.) Bicknell v. Trickey, 34 Me. 273. 284. See also as to "Garnishment 4. State v. Cornelius, 5 Ore. 46. Proceedings," post, Vol. II. 5. Curwensville Mfg. Co. v. Bloom. Under a statute authorizing the at- (Pa. Com. PI.) 10 Pa. Co. Ct. Rep. tachmen't "of any estate" of the de- 295; but see Dreisback v. Mechanics' fendant and providing for service of Bank, 113 Pa. St. 554. notice thereof on such persons as may The officer attaching the goods may be in possession, it was held that lawfully remove them from the soci- personal property not in the pos- ety or neighborhood where attached, session of any third persons upon to any proper place w^ithin his juris- whom service of the writ could be diction, for safe keeping, and so may made and which belonged to a non- an indifferent person deputized to resident defendant, who was absent make the levy use his own judgment from the state at the time of the levy, as to the place where he sliall keep might be levied on in attachment by the property attached, and hisauthor- the same acts as are essential to a ity is not limited to any particular valid common law levy of an execu- precinct. Carter v. Clark, 28 Conn, tion. Dorrier u. Masters, 83 Va. 459, 512. See post, §208, "Property Sus- 2 S. E. Rep. 927. ceptibie of Manual Delivery." 2. Taffts V. Manlove, 14 Cal. 47. 6. Abrams v. Johnson, 65 Ala. 465; 392 EXECUTION OF THE WRIT. §207 constitute a valid operative levy, the officer should do sucli act as to amount to a change of possession, or be equivalent to a claim of dominion coupled with a power to exercise it.* He must obtain actual control with power to remove it.^ The possession acquired and maintained, and the custody and con- trol exercised, must be such as will give timely and unequivo- cal notice thereof.* And if this be done it will be sufficient, without a manual taking of the property.* The custody of the officer must be such as to exclude that of the owner. ^ The Cobb V. Gage, 7 Ala. 619 ; Connell v. Scott, 5 Baxter (Tenn.) 595; Caw- thorne v. McCraw, 9 Ala. 519 ; Hag- gerty v. "Wilber, 16 Johns. (N. Y.) 287; Culver v. Eumsey, 6 111. App. 598, 7 111. App. 422. Merely seizing a few articles outside of a store or warehouse, and pro- claiming a levy or the goods, locked up in the store or warehouse and not within view of the officer, is not a levy. The sheriff ought to break open the store and actually seize the goods and take an inventory of them. Culver V. Rumsey, 6 111. App. 598, 7 111. Ai^p. 422. An inventory is not required in all cases. See post, § 231. A grain car, miles away, can not be attached by indorsement only. Such an attempt at a levy would be a nullity and would not be aided by the fact that two days later the officer put a custo- dian in possession of the car. Culver V. Rumsey, 6 111. App. 598, 7 111. App. 422. In an attachment of personal prop- erty of a railroad corporation there must be actual seizure of the goods intended to be attached. The service of a writ upon a railroad corporation in one county does not bind the de- fendant's property situate in another county. Pennsylvania, etc., R. R. Co. V. Pennock, 51 Pa. St. 244. 1. Crawford v. Newell, 23 Iowa 453. 2. Rix V. Silknitter, 57 Iowa 262; Powell V. McKechnie, 3 Dak. 319; Stockton V. Downey, 6 La. Ann. 581; Smith V. Orser, 43 Barb. (N. Y.) 187, s. c. 42 N. Y. 132; United States v. Graff, 67 Barb. (N. Y.) 304 ; Corniff v.. Cook, (Ga.) 22 S. E. Rep. 47. A levy of attachment on certain patterns in a foundry, confined under lock with the key in possession of the defendant, was held invalid, as the offi- cer had no actual control of the prop- erty. Rix V. Silknitter, 57 Iowa 262. Going to a carriage-house contain- ing a barouche, getting a key and un- locking the door, declaring at the time that he attaches the property within, is not an effectual levy upon the ba- rouche as against another officer hav- ing another writ who springs in and seized the vehicle. Hollister v. Good- all, 8 Conn. 332. 3. Sams v. Armstrong, 8 Mo. App. 573. This was not done in the case of a portable engine by simply telling the owners that it was attached, leaving it in their hands with full permission to work it as before, and asking a man who lived in the neighborhood to keep an eye open to see that it was not re- moved. Sams V. Armstrong, 8 Mo. App. 573. 4. Lyon v. Rood, 12 Vt. 233. 5. Russell V. Major, 29 Mo. App. 167. Simply barricading the door to se- cure a stock of goods in a store-room. § 207 MANNER IN WHICH THE LEVY SHOULD BE MADE. 393 property must not be left in the possession of the debtor unless he gives a forthcoming bond.^ Giving notice to a third person who is in charge of starch stored in a barn, that it has been attached, is not such a taking of possession as will prevent the subsequent attachment of the same by other creditors.'^ And the fact that money is the sub- ject of the levy does not alter the rule. It is the duty of the officer to take the money, or if that be impracticable to demand the bond conditioned for its protection.'^ It may be cited as an exception to the rule that where the property was occupied at the time by military forces, that act- ual possession by the sheriff was held to be unnecessary.* And again that an insufficient levy may be good as against a mere trespasser: as, by going to the place where the property was •kept and without taking possession of the property, certifying in his return that he had attached it ; this vested the sheriff with the specific property in such case.® Furthermore, it is not only essential in order to create the lien that the property must be taken into actual possession of the officer, but it is essential in order to preserve the lien thus cre- ated that such possession should be vigilantly kept, for when it is relinquished there is a termination of the lien and the gen- eral owner is remitted to his property unencumbered.^ To pre- which is found locked, and going creditor. Eoot v. Columbus, etc., 45 away leaving the back door unlocked Ohio St. 222, 12 N. E. Eep. 812. when the owner of the goods has a 2. Blake v. Hatch, 25 Vt. 555. key to it, is no levy. Bickler v. Ken- Locking up goods in a building and dall, 66 Iowa 703. taking the key into possession is not And if the officer leaves the prop- sufficient to exclude subsequent at- erty in the possession of the defend- taching creditors. Newton v. Adams, ant's servant, who is in charge of it at 4 Vt. 437. the time of the levj^ the property 3. McXamara v. Roderick, (Pa. will be thereby left in the possession Com. PL) 11 Pa. Co. Ct. Eep. 37. of the defendant and the levy be void. 4. Budd v. Stinson, 20 La. Ann. Russell V. Major, 29 Mo. App. 167. 573. 1. Root V. Columbus, H. V. & T. 5. Miller v. Fay, 40 Wis. 633. R. Co., 45 Ohio St. 222, 12 N. E. Rep. 6. Taintor v. Williams, 7 Conn. 271 ; 812. See post, § 286, "Forthcoming Walcott v. Keith, 22 N. H. (2 Foster) So^os«, Vol. II. Ohors v. Hill, 3 McCord, (S. C.) 338. Att. 26 402 EXECUTION OF THE WRIT. § 208 tachment on books of account is not a levy on the debts repre- sented by the books, and does not prevent the person to whom such debts are due from collecting them.' But in any case a process of garnishment will reach such indebtedness. Shares of stock in a corporation may be attached like goods and chattels in some states, but in Illinois an attested copy of the writ must be left with the proper officer of such corpora- tion.^ While in Alabama an oral notice to the custodian of the books of the corporation seems to be sufficient when the prescribed .indorsement is made on the writ.^ Policies of insurance may be the subject of attachment at suit of a creditor of one of the heirs of the insured. In making a levy thereon the officer should take the policies into his actual cus- tody. Serving a copy of the warrant and notice upon the in- surance company is not a sufficient levy.* A merchant's sign — a wooden boot, in this case — is suscep- tible of attachment like other chattels.® An article to be levied upon must be in esse, and must be capable of being described and identified.® It must also be capable of being taken into actual possession. A charcoal pit on fire and partly burned is incapable of attachment. It is no more coal than wood, and it is said that "property in process of manufacture and transition so as to be rendered useless, or nearly so, by having the process arrested, when it will require art and skill and care to finish it, and when completed it will be a different thing, is incapable of attachment."' 1. Lesher v. Getman, 30 Minn. 321; 3. Abels v. Real Estate Co., 92 Ala. Goodbar v. Lindsley, 11 S. W. Rep. 382, 9 So. Rep. 423; Abels v. Ins. Co., 577, 51 Ark. 380. 92 Ala. 382, 9 So. Rep. 423. As to And if books of account are at- shares of stock in foreign corpora- taclied, any effect which the attach- tions, see post, next section, ment may have had to prevent collec- 4. Hankinson v. Page, 31 Fed. Rep. tion of the debts will not be an ele- 184. See as to certificates of mem- ment of damage in an action for bers in benevolent association, next wrongful attachment. Goodbar v. section. Lindsley, 11 S. W. Rep. 577, 51 Ark. 5. AYallace v. Barker, 8 Vt. 440. 380. 6. See ante, § 28. 2. Union Nat. Bank v. Byram, 131 7. Wilds v. Blanchard, 7 Vt. 138. 111. 92, 22 N. E.:Rep. 842. § 209 PROPERTY NOT SUSCEPTIBLE OF MANUAL DELIVERY. 403 § 209. (c) On property not susceptible of manual delivery. — An attachment of personal property can not be made by an indorsement on the writ, and that only. Although the prop- erty be of such kind that it can not be immediately removed, yet must the officer be present and take it into his possession.* It may be a sufficient taking, as between the debtor and cred- itor, by an officer charged with the executing of a writ bf at- tachment, if he informs the owner of goods that he has attached them and forbids their removal;^ but as hereinbefore shown, some sufficient act must be done, in acquiring dominion over property sought to be levied upon, to give notice to third parties of the change of possession. If the articles are so pon- derous as not to be susceptible of removal conveniently, many statutes require that the officer or his agent must not only con- tinue to exert control over it, but that some notice must be posted or filed or recorded, or that a copy of the writ of attach- ment must be left or filed with a specified officer, such act being considered by the statute sufficient to give constructive notice to third persons of the levy made thereon.' 1. Darling v. Dodge, 36 Me. 370. copies, etc., and a deputy sheriff who 2. St. George v.O'Connell, 110 Mass. has so attached it and has not taken 475. it into his actual care and custody, 3. Lewiston Steam Mill Co. v. Foss, may maintain an action for the con- 18 Atl. Rep. 288, 81 Me. 593 ; Barron version of it against a corporation V. Smith, 63 Vt. 121, 21 Atl. Rep. 269; whose officers, knowing of the attach- Burroughs v. Wright, 19 Vt. 510 ; Clos- ment, have wrongfully caused it to be son V. Morrison, 47 N. H. 482; Scott v. removed and sold within thirty days Manchester, etc., Works, 44 N. H. after the attachment. Foley v. Lenox 507; Higgina v. Drennan, 157 Mass. Iron Works, 4 Allen (Mass.) 329. 384, 32 N. E. Rep. 354 ; Polley v. Lenox Furthermore, when an officer attaches Iron Works, 15 Gray (Mass.) 513; chattels, which he immediately re- Merrill V. Sawyer, 8 Pick. (Mass.) 397; moves and keeps in his custody, and Blanc V. Paymaster Mining Co., 30 also chattels which can not be im- Pac. Rep. 765, 95 Cal. 524 ; Kuhlman mediately removed, the attachment of V. Orser, 5 Duer (N. Y.) 242. the chattels not removed is valid Heavy plates of glass requiring under such a statute if he deposits in skill to remove them safely, and the town clerk's office a copy of the which can not be removed except at writ and of the return of the attach- unreasonable expense and consider- ment of those chattels only. Arnold able risk, may be attached in the v. Stevens, 11 Mete. (Mass.) 258. manner provided in the statute for An officer does not, by relinquish- the giving notice by posting, filing ing his possession of bulky personal 404 EXECUTION OF THE WRIT. § 209 Fixtures which a tenant of the realty may remove may be at- tached as personalty.* But fixtures which can not be removed without being taken to pieces may, it seems, be attached as realty.^ And it is said that a house, owned by the builder on land owned by another, may be attached in the manner in which real estate is attached without any actual possession be- ing taken by the officer.' Machinery and appurtenant articles come within the rule of ponderous chattels, and necessary acts should be done to give constructive notice to third persons.* But if no such notice is given, the attachment will yet be good as against purchasers from the defendant with knowledge of the attachment.® When the giving of notice is the requirement of the statute such notice must sufficiently describe the property and its situation as to unequivocally identify it.® An unripe crop is personal property not susceptible of manual delivery, and, if it is sought to be attached, the levy must be made accordingly.' Railroad cars are, under a Massachusetts statute, personal property for purposes of attachment, and an attachment made as prescribed therein, is valid.* property attached, such as hay in a feet his levy or to deliver possession mow, on filing a certificate, etc., as on receipt of a forthcoming bond, required by statute, preclude himself Patch v. Wessels, 46 Mich. 249. from resuming possession, if neces- 5. Rogers v. Gilmore, 51 Cal. 309. sary. Wentworth v. Sawyer, 76 Me. 6. Bryant v. Osgood, 52 N. H. 182; 434. Norris v. Watson, 22 N. H. (2 Fost.) 1. Morey v. Hoyt, 62 Conn. 542, 20 364. Atl. Rep. 127. 7. Raventas v. Green, 57 Cal. 254. 2. Gale v. Ward, 14 Mass. 352. Serving the required notices and 3. Ashmun v. Williams, 8 Pick, doing nothing further till the crop (Mass.) 402. was ripe, when it was gathered by the As to the proper manner of attach- officer can not be considered as an ing a pew in a meeting house in abandonment of the attachment. Massachusetts, see Perrin v. Leverett, Raventas v. Green, 57 Cal. 254. See 13 Mass. 128; Sargent v. Peirce, 2 as to ripe crop, sztpra. What was not Mete. (Mass.) 80. a sufficient levy upon a crop of corn 4. Fullam v. Stearns, 30 Vt. 443. which had ceased to grow but was Machinery bolted to the freehold not dry enough to crib, see Throop v. may be legally seized if the sheriff Maiden, 52 Kan. 258, 34 Pae. Rep. obtain full control of it. He need not 801. detach and remove it, either to per- 8. Hall v. Carney, 140 Mass. 131. § 209 PROPERTY NO'x- SUSCEPTIBLE OF MANUAL DELIVERY. 405 A ship or vessel is an article of personal property and (in the absence of special legislation to control such cases) must be attached as such. No valid levy can be made upon it if tlie debtor retains the possession and has the management thereof.^ A sheriff has no right to take a vessel and cargo out of the pos- session of a consignee. He must serve copies of his writ, or give such notice as the statute may require, and he will have a lien in the first place for his demands as a creditor in posses- sion.' Like other articles of personal property it can not be attached in its absence. A levy can not be made upon a vessel at sea by a return of the officer on a writ that he has attached the same so far as he has power to do, and by actual seizure of the vessel afterwards on her arrival at port.^ When a vessel is lying at a wharf and the articles are not necessary to her safety, such articles as a boat, cable and anchor may be levied upon by an officer.* Evidences of indebtedness are only susceptible of valid levy by being reduced to the manual possession of the sheriff. If they are in the hands of a third person who can not or will not de- liver them up, he must be cited as garnishee. A debt not evi- denced in writing is attached by making the debtor a garnishee. Without an actual seizure or citation in garnishment there can be no attachment.^ Therefore if the property be intangible, it 1. Bridge v. "Wyman, 14 ]Mass. 190. Gilm.) 531 ; Taacks v. Schmidt, 18 In this case it was said that it was Abb. (N. Y.) Pr. 307; Seabrook v. not necessary the officer should put Ruse, Riley (S. C.) Ch. 127. a person on board to keep possession, 4. Briggs v. Strange, 17 Mass. 405. but that it was essential that at least 5. Woodworth v. Lemmerman, 9 some person should be authorized La. Ann. 524. See also Kneeland v. and required by the officer to give Cowles, 4 Chand. (Wis.) 46; Pelham notice in case a second attachment v. Rosep, 9 Wall. (U. S.) 103; Anth- was attempted. Bridge v. Wyman, 14 ony v. Wood, 96 N. Y. 18, s. c. 67 How. Mass. 190. (N. Y.) Pr. 424; and Naser v. First 2. Schepler v. Garristan, 2 Bay (S. Nat. Bank, 116 N. Y. 492, s. c. 22 N. C.) 224. E. Rep. 1077. 3. Bradstreet v. Ingalls, 24 Atl. If the officer seizes a demand it is Rep. 858, 84 Me. 276. his duty to collect it and hold it with- As to the proper manner in general out waiting for an order of court or a of levying upon the shares or interest termination of the suit. Davidson v. in a vessel, as well as upon the vessel Chatham Bank, 32 Hun (N. Y.^ 138. itself, see Conn v. Caldwell, 6 111. (1 But written instrument can not be 406 EXECUTION OF THE WRIT. § 209 can not be attached by levy. There can be no seizure. Gar- nishment is the j)roper remedy.' A judgment can not be attached by a seizure in the hands of a clerk of the court by which it was rendered ; such clerk being merely a keeper of the records, he has no legal possession of, or control over it.^ Shares of stock in a foreign corporation can not, in the ab- sence of a statutory provision therefor, be levied upon by a seizure of certificates within the state. ^ But where the stock has been assigned as collateral security, the attachment should be made by summoning the person in whose name it is held, as garnishee.* Certificates of member ship in a benevolent association, it seems, need not be taken into the actual custody of the sheriff; as, for example, where A was a member of a benevolent association, which, at the time of his death, had not issued any policy on his life, but was under a contract to his heirs at law to assess upon and collect the sum which each member had agreed to pay on the death of another member; a levy against one of such heirs at law of the deceased members was made by leaving a copy of the warrant and notice with the association and it was held that the sheriff was not obliged to take a certificate of membership in such association delivered by the association to the deceased member into his actual custody.* legally attached, after having gotten domestic corporations only. Armour possession upon the pretext of wish- Bros. Banking Co. v. Smith, supra. ing to examine it. Van Volkenberg As to Massachusetts, see Hussey v. V. Bates, 14 Abb. (N. Y.) Pr. N. S. Manufacturers', etc., Bank, 10 Pick, (note) 314. (Mass.) 415; Denney v. Hamilton, 16 1. See "Garnishment," post, Vol. Mass. 405; Lillard v. Porter, 2 Head II. (Tenn.) 177. As to Iowa see Com- 2. Daley v. Cunningham, 3 La. mercial Nat. Bank v. Farmers', etc., Ann. 55. Bank, 82 Iowa 192, 47 N. W. Eep. 3. Armour Bros. Banking Co. v. 1080; Clark v. Farmers', etc., Bank, Smith, 113 Mo. 12, 20 S. W. Rep. 690; 82 Iowa 192, 47 N. W. Rep. 1080. Plymton w. Bigelow, 93 N. Y. 592, 63 4. Evans v. Brownscombe, (Pa. How.(N.Y.) Pr.484; Moore v.Gennett, Com. PI.) 8. Pa. Co. Ct. Rep. 456. 2 Tenn. Ch. 375. As to shares of 5. Hankinson v. Page, 31 Fed. stock in domestic corporation, see pre- Rep. 184. As to policies of insur- ceding section. ance, see preceding section. In Missouri the statute applies to § 210 CHATTELS INTERMIXED WITH THOSE OF STRANGER. 407 § 210. (d) Oil chattels intermixed with those of a stranger. — Making a levy upon chattels intermixed with those of a stranger is attended with many perplexities and is surrounded with much uncertainty. The general rules, however, may be stated to be as follows: If the goods of the owner have been so intermixed with those of another person, by the act or knowl- edge of the owner, as to make it impossible for the officer to distinguish them, he will not be liable to an action of trespass for attaching them as the property of the other person; but if the owner points out the goods and demands them, it is the officer's duty to return them, and if he does not do so, but goes on with the attachment and sells them, it is a conversion.* The duty is upon the owner, if present when such attachment is made, to point out his portion and demand it and if he neglects to do so, the officer may seize and hold the property until such demand is made, or the property disposed of according to law. ^ And if the owner intervenes in the suit and claims the prop- erty, he must make a demand of the officer before his issue on the intervener is tried, or he can not hold the officer liable.^ However, the officer should make some effort by inquiry to ascertain which articles belong to the debtor and which to the other owner.* It is said in one case, however, that the demand of, and refusal by the owner to point out his goods is not suf- ficient to justify the taking thereof on a writ of another cred- itor, but that the owner must have been guilty of a fraudulent intent to frustrate the attachment by intermingling the debtor's goods with his own.* But the fact that a furniture dealer intermingles furniture sold to him in fraud of creditors, without any unlawful motive 1. Sbumway v. Rutter, 8 Pick. 3. Smokey v. Peters Calhoun Co., 66 (Mass.) 443; Lewis v. Whittemore, -5 Miss. 471. N. H. 364. 4. Sliumway ■;;. Rutter, 8 Pick. The rule is the sarae as to mort- (Mass.) 443; Carlton v. Davis, 8 gaged property intermixed. Morrill Allen (Mass.) 94; Lewis v. Whitte- V. Keyes, 14 Allen (Mass.) 222. more, 5 N. H. 364; Wilson v. Lane, 2. Taylor v. Jones, 42 N. H. 25; 33N. H. 466; Bond v. Ward, 7 Mass. Albee v. Webster, 16 N. IT. 362. See 123. Robinson v. Holt, 39 N. H. 657. 5. Treat v. Barber, 7 Conn. 274. 408 EXECUTION OF THE WRIT. § 210 on his part, does not entitle the creditors of the seller to attach the purchaser's whole stock of goods as the seller's property, without requesting him to point out the goods held under such sale.^ And cattle are not so similar in appearance as to create such an uncertaint}^ in the minds of those who know them as to destro}^ the right of attachment by intermingling them with others, and the attaching creditor, it is said, can learn who sold them and can have them pointed out in this case.^ If the owner exhibits to the officer a bill of sale of articles of the same kind with others with which they are intermixed, and all of which the officer has attached, the offi_cer may select and return the least valuable of the articles corresponding with the bill of sale." In any event, whether it be the duty of the owner to point out his goods without being requested to do so by the officer about to make an attachment, or whether the officer is charged with making inquiry as to which belongs to the attachment de- fendant, yet it is undoubtedly true that a person who %vrong- fully produces a confusion of goods, — a cargo of " plank, boards and scantling," in this case, — by an unauthorized in- termixture, forfeits his right to the whole, and his creditors can not levy an attachment on his interest in such goods while they are in possession of the first officer.* A party who will- fully confounds the property of another with that of his own, so that the line of demarkation can not be discerned, assumes all the inconveniences of the confusion, and, generally, it is for him to distinguish his own property or lose it.® The rule as to intermingled goods applies also to the officer who attaches them. If he seizes intermingled goods on a writ of attachment and allows the articles he sought to seize to re- main intermingled with other goods of the debtor, and lays a claim to the whole so that another officer having a writ against 1. Smith V. Sanborn, 6 Gray (Mass.) 698 ; Loomis v. Green, 7 Me. 386 ; Hart 134. V. Ten Eyck, 2 John. (N. Y.) Ch. 62; 2. Holbrook v. Hyde, 1 Vt. 286. 2 Blackstone Com. 405 ; 2 Kent. Com. 3. Shumway v. Rutter, 8 Pick. 365; Treat v. Barber, 7 Conn. 274; (Mass.) 443. Robinson v. Holt, 39 N. H. 557; 4. Beachi7. Schmultz,20Ill. 186. Smith v. Sanborn, 6 Gray (Mass^ 5. ^yeil V. Silverstone, 6 Bush (Ky.) 134. § 211 PROPERTY OWNED JOINTLY BY A STRANGER. 409 the same debtor can not distinguish which has been attached, the latter officer will be justified in attaching the whole/ Furthermore, it seems, that if by such intermingling of goods a new ingredient is formed incapable of division, the officer may attach the whole and the party who occasioned, or through whose fault or neglect occurs the wrongful mixture, must bear the loss.'' § 211. (e) On property owned jointly or in common with a stranger. — A sheriff can not seize the goods of a partnership for the private debt of one and exclude the other partners from possession. He can only make a nominal seizure of the part- nership property for the private debt of one copartner." And while it seems he must seize and take possession of the entire levy able property, there being no difference between the levy in attachment and a levy of execution, in this respect,* and that if he deems it advisable to prevent iheir being wasted or carried away, he may take the goods into his actual custody or possession,'yet his possession is generally nominal and subject to the rights of possession of the other partners; and the interest which he can seize and sell is only the individual interest of the attachment defendant in the partnership assets after the rights and liens of other partners or tenants in common have been satisfied.* 1. Sawyer v. Merrm,6 Pick. (Mass.) 5. See ante, § 49. '*''^" 6. See cases cited in ante, § 47 et seq. While this may seem to some to be Where the attachment is sued out an exception to the rule that property against the cotenants jointly on a in custody of law can not be attached, joint demand, the ordinary rules gov- yet it must be remembered that such erning levies against individuals will property is not in the legal custody of apply, but the fact that the debt is the the officer making the first attach- debt of the copartnership, does not ment. His pretended attachment is necessitate the attachment of the wrongful. property of all the members of the 2. Robinson v. Holt, 39 N. H. 657. firm. A creditor of joint debtors has 3. Morrison v. Blodgett, 8 N. H. a right to secure his claim by attach- ^^^- ing the property of all or either of 4. Smith V. Orser, 43 Barb. (N. Y.) them. Marion v. Faxon, 20 Conn. 187 ; ]\Iarshall v. McGregor, 59 Barb. 486, N. Y.) 519. 410 EXECUTION OF THE WRIT. § 211 Where two tenants in common are in possession, the proper method to make a levy seems, generally, to be to take possession of the defendant's half interest,^ without excluding the other from his possession.^ And if such a levy is made by a cred- itor of one of the persons owning such property jointly, and later such a levy is made by a creditor of the other, no con- troversy need arise between the attaching creditors, because they are not co-creditors attaching the same estate, but creditors of different debtors attaching different estates.' The attachment of the interest of a co-tenant in land is governed by the same rules ; but no questions of trespass are likely to arise if the sheriff seeks to sell only the interest of the attachment defendant. The fact that the interest of a tenant in common in land has been levied upon will not prevent other part owners from procuring a legal partition of the estate, nor will the partition destroy the lien obtained by the levy. The lien follows the part set off to the debtor. And if the at- tachment be followed by judgment, execution, and sale there- 1. Coulson V. Panhandle Nat. Bank, it locked up in the hotel, after having 54 Fed. Rep. 855; Brown v. Bacon, 63 posted a notice of the attachment on Tex. 595 ; Clagett v. Kilbourne, 1 the principal door. He afterwards Black. (U. S.) 346. visited the island from time to time to 2. Morrison v. Blodgett, 8 N. H. 238. see that the property was safe, until 3. Pond V. Skidmore, 40 Conn. 213. the defendant, two months after, at- The rule requiring the removal of tached the interest of B in the prop- attached property by the officer is one erty and took possession of a large of policy only, to prevent fraud, and portion of it. In trover brought by does not apply where the possession the first officer, the judge (after in- is otherwise openly and notoriously structing the jury as to the necessity changed. Property consisted of the of an officer taking and holding pos- furniture of a summer hotel upon a session) left it to them to determine small island, was attached in the fol- from all the evidence whether the lowing manner: The attachment of plaintiff had, under the circumstances, A's interest was made in the winter, acted reasonably and properly in the when the island was uninhabited and course which he had taken to obtain when it was very difficult to remove and hold possession of the property, the property from it. The officer en- This was held to be correct. Pond v. tered, attached the property, and left 6kidmore, 40 Conn. 213. § 212 ON MORTGAGED PROPERTY. 411 under it must be of the estate assigned to the debtor to be held in severalty and not as a common and undivided estate.^ Except where there has been a failure to give legal notice of the partition suit, to the party who has attached the interest of a tenant in common, in which case such party may rightly levy his execution as upon an estate in common.^ § 212. (f) On mortgaged property. — A valid levy can not be made upon mortgaged chattels or pledged securities without taking them into the actual custody of the officer." And where property under mortgage or pledge is sought to be levied upon, and the same is in the possession of the mortgagee or bailee, the officer has no right to attach and take the goods from the possession of such mortgagee or bailee, without first paying or tendering the amount due upon the mortgage or pledge.* But since the mortgagee or pledgee has only a lien on the property, the officer may, when the property is in the possession of the mortgagor, attach the mortgagor's interest without having either paid or tendered payment to the mortgagee, but if the mortgagee demand possession of the property, the officer must surrender it or deny the mortgagee's right and test the question.® But where the officer takes possession of the chattels as against everyone except the mortgagee, and the defendant is wholly divested of possession, the attachment will be good as against the defendant.^ But the sheriff can not hold undisturbed pos- session against a prior mortgagee, even until the inventory is completed.' When a creditor seeks to attach chattels of his debtor that 1. Argylew. Dwinel, 29 Me. 29; M'- the mortgagee and the attaching Median v. Griffing, 9 Pick. (Mass.) creditor are one and the same person. 537. WilHam Deering Co. v. "Warren, 1 S. 2. Munroe v. Luke, 19 Pick.(:\rass.) D. 35, 44 N. W. Rep. 1068. 39. 5. Barber v. Smith, 41 Mich. 138; 3. Warner v. New York Bank, 44 Baldwin v. Talbot, 46 Mich. 19; Har- Hun (N. Y.) 374; Halben v. Reilly, 9 vey v. McAdams, 32 Mich. 472. Daly (N. Y.) 271. 6. Myers v. Cole, 32 Kan. 138. 4. Barker v. Chase, 24 Me. 230; 7. Rosenfield v. Case, 49 N. W. Rep. Wolfe V. Dorr, 24 INIe. 104. 630, 87 Mich. 295; Merrill v. Denton, He can not do so even then, where 73 Mich. 628, 41 N. W. Rep. 823. 412 EXECUTION OF THE WRIT. § 212 are under mortgage to a third person, he has the option to proceed in either one of two waj^s : ( 1 ) by seizing the entire property covered by the mortgage and paying or tendering the amount due thereon ; or (2) by simply levying on the right or equity of redemption of the mortgagor subject to the rights of the mortgagee.^ When the levy is made subject to the mort- gagee's interest, the validity of the mortgage liens is thereby recognized, and the officer can not then hold exclusive pos- session of the mortgaged property on the ground that the mortgage is being used to the fraud of the creditors. And under such a levy, if the officer hold exclusive possession, he will have no defense in an action of replevin, brought by the mortgagees, unless the value of the goods exceeds the amount of the mortgages, even though nothing is due on them.^ If, however, the mortgage on the property taken by the sheriff is afterwards foreclosed, and the mortgagee, at the foreclosure- sale, bids an amount sufficient to cover not only the mortgage debt, but an unsecured debt of the mortgagor to the mortgagee, the excess will be bound by the lien of the attachment in question,' In New York, an attachment of the pledgor's interest in merchandise pledged is sufficiently levied upon by serving certified copies of the attachment upon the pledgee, and by proper notices showing tl\e attachment of the property.* 1. Mooney v. Broadway, (Ariz.) 11 Where an attachment has been made Pac. Rep. 114. on a writ against one who did not 2. Rosenfeld v. Case, 49 N. W. Rep. own the property, and replevin is 630, 87 ]\Iich. 295. broughtby the owner, the officer might 3. Harvey v. Foster, 30 Pac. 849, 64 defend his detention of the property Cal. 296. as servant of the party who had the If one who has a lien on goods lien, though the attachments were which are attached in his hands, re- void. He may also prove by parol ceipts for them to the officer, under evidence that he attached subject to an agreement that he shall continue the lien, though no mention of it be to retain them for his lien, and they made in the receipts nor in his re- are afterwards attached at his own turns. Townsend v. Newell, 14 Pick. suit, and he receipts for them, still as- (Mass.) 332. serting his lien, his lien is not there- 4. Lane v. Wheelwright, 23 N. Y. by discharged. Townsend v. Newell, S. 576, 69 Hun (N. Y.) 180. 14 Pick. (Mass.) 332. § 213 ON EXEMPT PROPERTY. 413 § 213. (g) On exempt property. — As hereinbefore shown/ property which is made exempt from execution by the laws of the state can not be attached; but the exemption laws are local and can only protect the exempt property so long as it remains in the state.* If the sheriff should attach property which is shown to be exempt, he must release his levy and permit the owner to retake possession of it.^ Although the debtor may be entitled to claim his exemption, he may waive the privilege and consent that the property may be attached. He may waive his privilege of exemption either by his acts or by his neglect to act. Where he neglects to make a demand to have his exempt property (the same being a parcel of a larger quantity) set apart before or at the time of the levy, he waives his privilege.* It has been said that he is not bound to inter- pose his claim to exempt property when the writ is served on him, that it comes in time if with the filing of his appearance in the case ; provided the plaintiff has not suffered from want of notice or the claim.® A locked trunk containing some exempt goods may be taken into the possession of the officer, it seems, after he has given 1. See ante, § 64. ing officer for damages. Woods v. 2. Boykin v. Edwards, 21 Ala. 261. Keyes, 14 Allen, (Mass.) 236; Howard In Alabama a levy on personal prop- v. AVilliams, 2 Pick. (Mass.) SO. erty, claimed to be exempt, is invalid As to the compulsion of the officer unless the bond and affidavit required to take notice of what goods are ex- by the code be first given. Totten v. empt under the statute, see ante, § 74, Sale, 72 Ala. 488. "What Property may be Reached." 3. Servant! v. Lusk, 43 Cal. 238. But where articles used as provision If the officer refuses to release the are not set apart to be used by the property without a "bond for release," debtor's family from others of the he will exceed his authority. Any same kind kept for sale by the debtor, such bond which he may extort will /the officer may levy upon the whole, be void. Servanti v. Lusk, 43 Cal./ Nash v. Farrington, 4 Allen (Mass.) 238. ^1 157. 4. Smith V. Chadwick, 51 Me. 515. 5. Landis v. Lyon, 71 Pa. St. 473. But if articles to be attached are Hence, any defect in the statement plainly distinguishable as tools and in his claim made to the sheriff at the implements of the debtor's business, time of the service does not embarrass no demand or designation thereof, at his enforcing it when subsequently and the time of the attachment, is neces- properly interposed. Landia v. Lyon, sary in order to enable the debtor to 71 Pa. St. 473. maintain an action against the attach- 414 EXECUTION OF THE WRIT. § 214 the owner an opportunity to remove the exempt articles from the trunk. He may then retain such articles until they are called for by the owner, and if he then delivers them to the owner no action will lie against him for the taking.^ If the debtor be temporarily absent, his wife, or other person left in charge, is authorized to claim the benefit of the exemp- tion laws for him.^ The levy of an attachment on a parcel of land in which the debtor has a homestead creates no lien except on the excess.' If an action of replevin has been brought against the officer to recover goods attached by him, and he has successfully de- fended the same, he can not thereafter deny the title of the debtor, in an action to recover the same goods, on the ground that they were exempt from attachment.* The exemption from attachment is a personal privilege, and must be claimed by the person entitled thereto.® § 214. (h) On land. — When there is no positive limitation of the right of attachment a levy may be as well made upon real property as upon personal property ; and the existence, within the knowledge of the officer, of a sufficiency of personal property which he might seize will not invalidate the attach- ment of the land. An attachment of land is sufficient when the levy is so made as to confer jurisdiction on the court.® 1. Towns V. Pratt, 33 N. H. 345. propertj^ can be found subject to levy. 2. McCarthy's Appeal, 68 Pa. St. It is therefore essential to the validity 217. of the title acquired by the sheriff's 3. Mayers v. Paxton, 14 S. W. Rep. deed that it should appear, from the 568, 78 Tex. 196. return, that the defendant had no 4. Foss V. Stewart, 14 Me. 312. goods and chattels subject to levy. 5. See a7ite, § 72. Vilas v. Reynolds, 6 Wis. 214. A building which was owned by a In Arkansas, under a similar statute debtor, but which stood on another's in an attachment before justices of the land, has been attached in the manner peace, it was held that where the provided for the attachment of real constable's return showed that he estate. Ashmun v. Williams, 8 Pick, could find no personal property on (Mass.) 402. which to levy, it was not necessary, 6. Boggess V. Gamble, 3 Coldw. before selling the land levied on, that (Tenn.) 148. the affidavit by plaintiff that defend- Wisconsin only provides for the at- ant had no personalty subject to levy, tachment of land when no personal required by another section to be filed 5 214 ^^ LAND. 415 Whatever interest in land may be seized on execution may be seized on attachment; the rule in this regard being the same as that applicable to personal property ; and, m the ab- sence of any statutory provision to the contrary, it may be as well seized in the first instance as to await the exhaustion of the personal property. Any interest in land susceptible of being made the subject of a lien is susceptible of attachment. Other states are approaching, if they have not already adopted, the rule laid down in California, that -land" embraces all titles, legal or equitable, perfect or imperfect, including such rights as lie in contract ; and those which are executory as well as those which are executed.^ In Tennessee the right which the debtor has to redeem land from a judicial sale may be attached.' In Alabama, however, it is said that a vested remainder can not be seized, in the possession of the tenant forlife." The attachment of real estate is almost entirely symbolical. The officer gets no possession of it, and the occupant is not dispossessed.* The officer gets no property or right of pos- session in real estate.' And it is not necessary for him to enter upon the land in order to make a levy upon it.' Nothing more is requisite than the doing of some act by the officer with in- tent to make the property liable to the process.' It is not ne- cessary, even as against a bona fide purchaser, that the officer should 'take actual possession of the property, nor that he should go near it, nor see it, but he must do some act, make some entry or memorandum indicative of his intention ; and when he has done this, with a fixed purpose in his own mind, he has made a legal levy. Simply making a return that he before selling realty on attachment, 3. Good v. Longmire, 35 Ala. 668. Bhould have been filed. Webster v. 4. Perrin v. Leverett, 13 Mass. 128; Daniel, 47 Ark. 131. Smith v. Collins, 41 Mich. 173. 1. Fish V. Fowlie, 58 Cal. 373. 5 Scott v. Manchester, etc., Co., 44 Compare Chitty's PI. -174; 2 Black- N. H. 507. stone's Com. 16 ; 3 Blackstone's Com. 6. Crosby v. Allyn, 5 Me. (5 Greenl.) 217 See Buhl v. Kenyon, 11 Mich. 453; Taylor v. Mixter, 11 Pick. (Mass.) 249 341. 2. Herndonu.Pickard,5Lea (Tenn.) 7. Rodgers v. Bonner, 45 N. Y. 379. 702. 416 EXECUTION OF THE WRIT. § 214 has attached is sufficient/ But in some states, as against bona fide purchasers,- a publication of notice, or the recording of a certificate of the attachment, is necessary/ If the return is certain on its face and conforms substantially to the requirements of the statute it is sufficient/ The return (the indorsement on the writ) should describe the real estate levied upon with that certainty which would be sufficient in a deed of conversance, lest the levy be void/ If, however, certainty can be shown from other facts, the defect may be cured, as for instance where an attachment was laid on a part of a certain tract without designating the part, the defect in itself would have invalidated the levy, but it was rendered sufficient by proof that the de- fendant in attachment had previously conveyed all of the tract except the number of acres ujDon which the attachment was laid/ Parol evidence is admissible to show what parcel was intended/ A general attachment of all the interest of the debtor in any real estate in the county will hold real estate fraudulently conversed by the debtor by a deed which has been duly recorded/ Return on an attachment of "All the real estate owned by the defendant in the county of K" will hold the property, although the defendant sold all the pro|)erty by an unrecorded deed/ Even in the attachment of a vacant lot of ground, it is unnecessary that the sheriff should take pos- session of the proj)erty attached by the actual and corporeal detention thereof. The execution of the writ has the legal effect of vesting in him the civil possession of the defendant.^ 1. Burkhardt v. McClellan, 1 Abb. sufficient. Saunders i;. Columbus, etc., (N. Y.) App. Dec. 263, 15 Abb. (N. Co., 43 Miss. 583. Y.) Pr. 243, note; Rodgersu. Bonner, 4. Biggs v. Blue, 5 McLean (U. S.) 55 Barber (N.Y.) 9; Taylor?;. Mixter, 148; Clark v. Ward, 12 Gratt. (Va.) 11 Pick. (Mass.) 341 ; Hancock v. Hen- 440. derson, 45 Tex. 479. 5. Biggs v. Blue, 5 McLean (U. S.) 2. See below. 148. 3. Saunders v. Columbus Life Ins. 6. Whitaker v. Sumner, 9 Pick. Co., 43 Miss. 583. (Mass.) 308. The court will not intend facts in- 7. Pratt v. Wheeler, 6 Gray (Mass.) consistent with the return, tending to 520. make it void. Strict compliance with 8. Moore v. Kidder, 55 N. H. 488. the language of the statute is not re- 9. Boyle v. Ferry, 12 La. Ann. 425. quired. A substantial compliance is § 214 ON LAND. 417 The only possible circumstance which would justify the officer in taking corporeal possession of the land, to the exclusion of the defendant or other person in possession, is the reasonable apprehension of injury to the property itself. But this he can not then do unless he is expressly directed by order of the court. ^ The officer does not, by the levy on real estate, acquire any right of property in, or possession of, the land,^ as he does when he levies upon personal property.' His levy simply creates a lien upon the real property in favor of the attaching creditor from the date of the levy,* and although he attaches but an equity in the real estate, his attachment creates a lien thereon.* However in Louisiana, where the sheriff seized and sold "all right, title and interest of the debtor in a lot of ground" owned by him, but which was encumbered by a mortgage, it was considered as a seizure and sale of the property itself, and not of the contingent right of the debtor to so much of the property as might remain after the mort- gages were satisfied, and that, as the title passed at the sale, the mortgagee must look to other proceedings. * It has, however, been said in Connecticut that it is not when the real estate is levied upon that the lien is created, but that it is effected when that notice is given to the defendant which makes him a party; because it is the service of the writ of attachment which con- stitutes the commencement of a suit.' 1. Wood V. Weir, 5 B. Men. (Ky.) before judgment is rendered and ex- 544. ecution thereon is levied. As an at- 2. Scott V. Manchester, etc., Works, taching creditor he has the same right 44 N. H. 507. to redeem as the mortgagee has. Their 3. See a?i«e, § 208. liens are equal inefficiency. Chandler 4. State V. Cornelius, 5 Ore. 46. v. Dyer, 37 Vt. 345. See further as to 5. Moulton V. Stowell, 16 N. H. 221 ; "Liens," post, § 313. Burkhardt v. McClellan, 15 Abb. (N. 6. Trudeau v. McVicar, 1 La. Ann. Y.) Pr. 243, note; Chandler v. Dyer, 426. 37 Vt. 345. 7. Sandford v. Dick, 17 Conn. 213. He has, however, by virtue of his Therefore, where the statute of attachment, a right to redeem the land limitations on the claim expired on from a prior encumbrance in order to the second of March, a writ of at- make his own claim beneficial and tachment was issued and levied on available to himself, and this even the real estate of the defendant the Att. 27 418 EXECUTION OF THE WRIT. § 215 § 215. Levy of ancillary attachment — "Attachment in aid." — All attachment proceedings are in one sense ancillar}^, for they are in aid of a suit for the collection of a debt ; but the line of demarkation, — not well indicated in some states, — between what is termed an "Original Attachment" and an "Ancillary Attachment" is, that the term "Original Attach- ment" contemplates that the proceeding is begun with the present intention of acquiring a lien by levying an attach- ment, while the term "Ancillary Attachment" contemplates that the main action has been theretofore begun by an ordi- nary personal writ of summons, without any intent at the time of suing out, or resorting to, a writ of attachment to aid it ; "Original Attachment" intends a writ of attachment from the inception of the suit, while "Ancillary Attachment" does not so intend, but resorts to it thereafter. Ancillary attachment is applicable only to a limited class of cases, but within its limits it rests upon its own facts and not upon the facts of the original action.* The same precision is necessary in following the requirements of the statutes in re- gard to the affidavit, bond, writ, service and return as is re- quisite in the bringing of original attachment. Yet it seems almost useless to state, a failure to sustain the attachment be- cause of defects in one or more of these will have no effect whatever upon the original suit. It is well to observe that some statutes require the service of summons in the original suit before permitting the writ to issue in the attachment case, and under such a statute, where the summons has been issued against a number of defendants, and is returned without service on some of them, an affidavit and bond can not be filed in the suit, and an attachment sued out against the defendants who have not been served.^ Some statutes require that the principal suit be pending in twenty-eighth of Februan^ preceding, plaintiff's claim was barred by the but no copy was left with the defend- statute of limitations. Sandford v. ant or at the clerk's office until the Dick, 17 Conn. 213. fourth of March; it was held that the 1. Reed v. Maben, 21 Neb. 696, 38 action was not brought within the N. W. Rep. 252. time required, and consequently the 2. McDonald v. Smith, 24 Ark. 614. §215 LEVY OF ANCILLARY ATTACHMENT. 419 fact before the issuing of an ancillary attachment in certain cases, but that the affidavit and the writ must allege that a suit has been commenced by the plaintiff against the defendant, the nature thereof, the tribunal in which it is pending, the amount of the damages laid in the action, and that the cause of action is just/ Others do not require the allegation of the existence of the previous suit." Under a statute providing for the issuance of ancillary attachment, "when a suit shall be commenced in any circuit or county court," it was said that it might issue, although the leading process had not been exe- cuted; and that the failure to serve the writ upon the defendant would not abate the attachment or impair its efficiency, but that the plaintiff might proceed to judgment as in other cases.' But under another statute it was held that the mere issuing of summons was not a commencement of an action, for general purposes, and that until it is served in case of a non-resident, so as to give the court jurisdiction of the person of the defend- ant, no attachment against his property can be issued.* And 1. Smith V. Foster, 3 Coldw.(Tenn.) 139 ; Thompson v. Carper, 11 Humph. (Tenn.) 542. A writ of ancillary attachment must so identify the suit in aid of which it is issued as to show upon its face that it forms an adjunct of that particular suit. Lewis v. Woodfork, 2 Baxter (Tenn.) 25; Peak ■?;. Buck, 59 Tenn. 71 . And the words in the writ "ancillary to a suit at law this day commenced," without notice therein given to the defendant of the nature of the suit, the parties thereto, or of the tribunal in which the suit is pend- ing, will not be sufficient. Woodfolk V. Whitworth, 5 Coldw. (Tenn.) 5G1. 2. Hounshell v. Phares, 1 Ala. 580. When the writ of attachment is sued out subsequently to the institu- tion of the original action, a separate petition or affidavit is generally re- quired— Shapleigh V. Roop, 6 Iowa 524 — unless the same is asked for in the petition. Queen v. Griffith, 4 Greene (Iowa) 113; Dawson v. Jew- ett, 4 Greene (Iowa) 157. Consult and follow carefully the controlling statutes ; and as to affidavit and bond generally, see mite, §§ 127 and 153. In Indiana, in attachment suits, the affidavit may contain the requisites both of a complaint and affidavit, so as to dispense with any separate complaint. Dunn v. Crocker, 22 Ind, 324. 3. Morgan v. Lamar, 9 Ala. 231. When an ancillary attachment in aid of a suit is sued out, the grounds upon which it issues can not be traversed or put in issue by the de- fendant in the main action. Jones v. Donnell, 9 Ala. 695. See "Dissolution of Attachment," post, § 326. 4. Kerr v. Mount, 28 N. Y. 659. Compare Treadwell v. Lawlor, 15 How. (N. Y.) Pr. 8. In Illinois, an attachment in aid of 420 EXECUTION OF THE WRIT. § 2l5 under a statute providing that ''when any suit is instituted," etc., the plaintiff may, '*on affidavit," etc., forthwith sue out an attachment; it was held, that the affidavit might be made any time before the abatement of the suit against a non-resident by a return of the officer.' The return on the summons, that the defendant could not be found in the officer's county, abates the suit then instituted, and an ancillary writ of attachment can not thereafter be obtained.^ Such is the general intend- ment of the statutes regarding ancillary attachment. Its pur- pose is to aid the suit then pending and it is a competent writ at any time during the pendency of the suit, before judgment.' The service of the writ in an ancillary attachment is gov- erned by the same rules as in an original attachment, except that inasmuch as an ancillary attachment is brought in aid of a suit theretofore begun by personal service, no personal serv- ice is required of the ancillary writ. The levy upon the prop- erty and the return is all that is required.* But where there has been no personal service on the defendant in the main ac- tion, no judgment can be rendered on the ancillary attachment without personal service upon the defendant,^ or such other acts as the statute requires for the getting of jurisdiction. The statute of Illinois provides that upon the return of an attach- ment, pending a suit, when there has not been personal serv- ice in such suit, notice of the pendency of the suit and of the a suit at law may issue at any "time," 2. Steele v. Harkness, 9 W. Va. 13; although the revised statutes, in re- Murray v. Hamilton, (Ky.) Hard. 5. vising a previous law, where the word 3. After judgment the writ of exe- "time," as it stood in the original act cution is the proper process. on file, was erroneously printed As to an attachment on a judgment "term," adopted the error of the mis- and as to its being on the same foot- print. Dutcher v. Crowell, 10 111. (5 ing with writs of fi. fa. or ca. sa. and Gilman) 445. ci.fa. in regard to its issue, see Boyd An attachment may be issued in v. Talbott, 7 Md. 404. aid of a set. /a., to make a defendant, 4. Rutledge v. Stribling, 26 111. who has not been served with pro- App. 353 ; Bailey v. Valley Nat. Bank, cess, a party to a judgment recovered 19 N. E. Rep. 695, 127 111. 332. against his codefendant. Ryder v. 5. Moore v. Hamilton, 7 111. (2 Glover, 3 Scam. (111.) 547. Gilman) 429. 1. Pulhamv. Aler, 15Gratt.(Va.) 54. § 216 NECESSITY OF SERVICE OR CONSTRUCTIVE SERVICE, 421 issue and levy of the attachment shall be given as in cases of original attachment.* When the main action is begun against joint promisors, who are not partners, an attachment may be had against the prop- erty of one of them only.^ Some statutes relating to the service of ancillary attachment are broad enough, not only to allow it where the suit is com- menced by summons or capias ad respondendem, but where the original attachment is the leading process in the cause. How- ever, where the property held under the original writ is amply sufficient to satisfy the plaintiff's demand the ancillary writ will perhaps be quashed.' The delivery to the defendant of the summons or copy, in the service of a writ of attachment, is not a part of the attachment itself, but is necessary to complete the service of the writ, and to require the defendant to answer to the action.* If there be no such service of summons, the attachment fails, and a deed made after the levy will convey the land free from the attachment lien, though executed prior to the expiration of the time for the service of the summons.* Summoning the Defendant — Constructive Service — Publication. § 216. Necessity of service or constructive service. — A very old maxim states, that every man is entitled to his day in court, and it is a well established principle that no personal 1. Rev. Stat., Chap. 11, §31; Rut- 4. Kittredge v. Emerson, 15 N. H. ledge V. Stribling, 26 111. App. 353; 227. Bailey v. Valley Nat. Bank, 127 III. Under a statute which provided 332, 19 N. E. Rep. 695. that a levy on personalty must be 2. Patterson v. Stiles, 6 Iowa 54. made "by taking the same into the 3. Brown v. Isbell, 11 Ala. 1009. sheriff's actual custody," and that a It was said in one case that, al- copy of the warrant must without de- though an attachment must be signed lay be delivered to the person from by the judge granting it, it was not whose possession the property is necessary that the copy served should taken, the levy is complete at the have a copy of the judge's signature time of the taking. Adams v. Speel- subscribed to it. Greenleaf v. Mum- man, 39 Hun (N. Y.) 35. ford, 19 Abb. (N. Y.) Pr. 469, 30 5. Kincaid v. Frog, 31 Pac. Rep. How. (N. Y.) Pr. 30. But such omis- 704, 49 Kan. 766. sion can not be pronounced anything else than bad practice. 422 EXECUTION OF THE WRIT. §216 judgment can be rendered against a defendant, wlio has not been personally summoned to appear, or who does not volun- tarily appear to defend himself.* Therefore, in all attachment cases there must be a personal service of summons, or a per- sonal appearance, before a court can acquire jurisdiction to enter a personal judgment; and to quash the summons will put an end to the suit, and an attachment made on the writ will necessarily fail with it.^ In all attachment acts, an effort is made to overcome the 1. Pennoyer v. Neff, 95 U. S. 714. 2. Paul V. Bird, 25 N. J. L. 559; Stanley v. Stanley, 35 S. C. 584, 14 S. E. Eep. 675. See as bearing upon this point in regard to quashing gar- nishee summons, Burlingham v. Cole, 13 Gray (Mass.) 271. Under a statute requiring the of- ficial to read the writ to the defendant named therein, or deliver to him a true copy thereof, a personal service can not be made in any other than one of these two ways. The sheriff can not cull out such parts as he may deem material and read them to the defend- ant, omitting the rest and thereby make a good service. Gary v. Barber, 1 Colo. 172. See also Great West, Mining Co. v, Woodmas of Alston Mining Co., 12 Colo. 46, 20 Pac. Rep. 771. A special agent, authorized to settle a particular debt only, is not such an agent that process to commence an at- tachment upon the debt can be served upon him instead of the principal. Fulsom •;;. Conner, 49 Yt. 4. Nor is the agent of a foreign insur- ance companj^ sent out to solicit writs such an "agent" as is required by the statute relating to the service of attach- ment. A sheriff's return setting forth neither the agent's special character nor place of business, will not be con- clusive. Liblong V. Kansas Fire Ins. Co., 82 Pa. St. 413. Further as to requisites of service in Pennsylvania see Vandergrift's Appeal, 83 Pa. St. 126. But leaving a copy of the citation and petition with the debtor's wife, at his residence, has been held to be suf- ficient. Thomas v. Wetzler, 4 La. Ann. 184; Giles v. Hicks, 45 Ark. 271. In an attachment of a debt due from a corporation, service of process should be made upon such officer of the cor- poration as is requisite to bind the corporation in an ordinary suit against him. Under the Virginia code, where the corporation is a town or city, serv- ice may be made on the mayor, or, in his absence, on the president of the council, or of trustees, or, if both be absent, on an alderman or trustee. But service on the auditor, without appearance by the city or creditor, was held not to give the court juris- diction of the debt which the city owed to the creditor. Alexandria v. Fairfax, 95 U. S. (5 Otto) 774. Service of a writ upon a school dis- trict, by attaching certain personal property of the district and leaving a true and attested copy of the writ, with the ofiicer's return thereon, at the house of the then usual abode of the clerk of such district in the hands of his wife, has been held to be good. Dow V. School District No. 12, 46 Vt. 108. § 218 NECESSITY OF SERVICE OR CONSTRUCTIVE SERVICE. 423 necessity of personal service by providing for tlie performance of certain acts which are deemed to be constructive service. The extent to which the courts generally hold that such a con- structive service gives jurisdiction of the person of the defend- ant, is, that the court acquires jurisdiction of him to the extent that the attached property is subject to any judgment that may be rendered against him.' Constructive service will not be permitted where personal service is possible. The officer is bound to use diligence to secure the best service, and may not adopt an inferior service until after he has used reasonable diligence throughout the whole time allotted for superior modes, without avail. ^ The effect of this constructive notice is to give the court jurisdiction of the property of the defendant which has been levied upon under the writ of attachment within the jurisdiction; i. e., power to dispose of the property; but for all other purposes than the acquirement of jurisdiction to render personal judgment to the extent of the value of the proj^erty seized, and power to dispose of the res, such an effort toward constructive service, or in substitution of personal service, is a nullity. The performance of the acts required by the statute to make a constructive service are only effective in giving the court 1. Gibson v. Everett, 41 S. C. 22, 19 S. tached. Bell v. Somerby, 8 N. H. 64. E. Rep. 286; Thomson -y. Shackelford, And in Michigan the return of an 6 Tex. Civ. App. 121, 24 S.W. Rep. 980. attachment must show that the officer 2. Town V. Tabor, 34 Mich. 262. served a certified copy of the inven- The Lousiana code permits the at- tory of the property seized on either tachment of the debtor's property in the principal defendant or owner of whatever hands it may be found, and the property attached, or the proceed- the attachment is effective by service ings will be void. White v. Prior, 88 of the process upon the person having Mich. 647, 50 N. W. Rep. 655 ; Lang- such property in his possession. Grieff try v. Wayne Circuit Judges, 68 Mich. V. Betterton, 18 La. Ann. 349. 451, 36 N. W. Rep. 211. In New Hampshire, when no attach- But in Georgia the law does not pre- Kient is made, the writ of attachment scribe any such notice in an attach- may be served by copy. Chase v. ment of a house and lot occupied by a Kent, 61 N. H. 76 third person under claim of title, as A copy of the w^rit and not of a serving a copy upon the occupant to summons must be served upon the bind him. Guernsey v. Reeves, 58 prinopal and not the agent when the Ga. 290. goods or estate of the principal are at- 424 EXECUTION OF THE WRIT. § 217 complete jurisdiction of an action in rem. After the construc- tive service is had upon the defendant, by publication of no- tice as required by the statute, the court has obtained sucli complete control of tlie property seized on the attachment, that the rights of purchasers of the property at the sale on execu- tion will be protected.* In fact, the defendant himself is be- fore the court for all purposes, except the rendition of a per- sonal judgment against him generally.^ The practitioner must, however, remember that the most es- sential requisite to the jurisdiction of the court, in a proceed- ing under a statute providing for the levy of writs of attach- ment upon the property of absent defendants and publication of warning to them to appear, is the levy of the writ of attach- ment. Such a proceeding being in rem, the court can not dis- pose of the property, unless the property is properly within the court.^ There is not likely to be any waiver of defects and ir- regularities, by the personal appearance of the defendant, and it is incumbent upon the practitioner, therefore, to see that every preliminar}^ step is in exact compliance with the con- trolling statute, or his efforts, even after judgment, may be de- feated by a collateral attack. § 217. The purpose of publishing notice. — Natural justice requires that a person shall have notice of some kind before his property can be bound by judicial sentence.* The object of the notice to an absent defendant is said not to be for the pur- pose of giving the court jurisdiction of the writ and subject- 1. Bliss V. Heasty, 61 111. 338 ; Smith 3. Cooper v. Reynolds, 10 Wall. (U. V. Yargo, 28 111. App. 594. S.) 308. 2. King V. Vance, 46 Ind. 246. See, 4. Haywood v. Collins, 60 111. 328. also, Newman v. Cincinnati, 18 Ohio The attachment law of Illinois re- 323 ; Morgan v. Burnet, 18 Ohio 535 ; quires this notice to be either by per- Meyer v. Keith, 99 Ala. 519, 13 So. sonal service or by publication. Hay- Eep. 500. wood v. Colhns, 60 111. 328. And in Georgia the plaintiff in at- But leaving the state temporarily tachment of chattels for purchase- does not make necessary any other money may, by giving the notice pre- service upon the defendant than lev7- scribed in the code, become entitled ing a copy of the summons at his to a general judgment against the de- house with a member of his family, fendant. Sutton v. Gunn, 86 Ga. 652, Giles u. Hicks, 45 Ark. 271. 12 S. E. Rep. 979. § 217 THE PURPOSE OF PUBLISHING NOTICE. 425 matter, but to inform the defendant of the proceeding and give him an opportunity to defend.^ The court acquires jurisdiction to issue the writ, by the af- fidavit, bond, etc., and acquires jurisdiction of the property by its seizure, within the territory controlled by the attachment stat- utes. The jurisdiction over the subject-matter in attachment cases can only be obtained by the levy of a writ properly is- sued. The presence or absence of the defendant is immaterial in regard to the jurisdiction of the property. Therefore, the fact that the defendant, after entering a motion to quash a de- fective writ, appears on the trial of a plea in abatement, will not bind the defendant the same as though there had been a valid writ.^ There must, however, be jurisdiction of the per- son of the defendant, in some of the modes known to the stat- ute, for without it the judgment will be void, and its validity may be questioned collaterally.' The publication of notice is intended to be a constructive personal service, and is effective as such for the rendition of a judgment on the personal de- mand, to the extent of the value of the property seized. But unless the prescribed notice is duly made, the attachment is wholly void.* The notice required by the statute is not a pro- 1. Williams v. Stewart, 3 "Wis. 678. six months from the issuance of the If he appear and traverse the mat- attachment. Bickerstaff v. Patterson, ter of the affidavit, this object is at- (Ala.) 8 Porter 245 ; Murray v. Cone, tained, and the court can not dismiss 8 Porter (Ala.) 250; Flemings. Burge, the case on account of the insuffi- 6 Ala. 373. Further as to notice to ciency of the notice. Williams v. non-residents and the application of Stewart, 3 Wis. 678. the provision to cases of fraudulent And where a defendant brings re- disposition of property, see Dollins v. plevin as soon as the attachment is Pollock, 7 So. Rep. 904, 89 Ala. 351. served, the sheriff need not proceed 2. Smith v. Hackley, 44 Mo. App. to advertise the levy, because the 614. only object of such advertisement is 3. Haywood v. Collins, 60 Til. 328; to induce the appearance of the de- Firebaugh v. Hall, 63 111. 81. fendant, and this is effected by the 4. Cummings v. Tabor, 61 Wis. 185. replevin. Reynolds v. Jordan, 19 Ga. As bearing upon this point, see 436. Fitzimmons v. Marks, 66 Barb. (N. No notice to the absent defendant Y.) 333 ; Phelps v. Baker, 60 Barb. or advertisement is necessary in Ala- (N. Y.) 107; Pawling v. Bird, 13 bama when the judgment is not ren- Johns. (N. Y.) 192; Robinson w. dered until after the expiration of Ward, 8 Johns. (N. Y.) 86; Webster 426 EXECUTION OF THE WRIT. §217 cess in its proper sense, but is merely a paper communicating information to the defendant of the issuance and levy of an at- tachment. The authority of the sheriff to give notice depends upon the fact of such issuance and levy.^ Where the defendant in the attachment proceedings can be found, it is generally the duty of the officer serving the writ to summon him.^ But if he does not reside, or can not be found in the state, the suit may be proceeded in by publication.' In theory, at least, it is only when the defendant is beyond the reach of a summons, that the resort may be had to the publication of notice as a substitution of service.* When there is or can be no direct per- V. Reid, 11 How. (N. Y.) Pr. 437; Manchester v. McKee, 9 111. 511. In Texas, in a suit to try the right of property claimed by defendant, which had been attached by the plaintiff in an action against another, the plaintiff offered in evidence the judgment in his favor in the suit against such other person. This was objected to on the ground that it was a personal judgment, and had been rendered upon citation by publication without the appearance of defendant. The court said that the attachment having issued in an action to foreclose a mortgage, the service of publication was sufficient to give the court juris- diction to render a judgment which in legal effect subjected the attached property to the payment of the debt sued on. Harris v. Daugherty, 74 Tex. 1, 11 S. W. Rep. 921. 1. Rice V. Clements, 57 Ala. 191. "When these facts exist, the notice in compliance with the statute will be good, and although the plaintiff be then dead, a judgment will not be prevented. Rice v. Clements, 57 Ala. 191. 2. Drysdale v. Biloxi Canning Fac- toi-y, 67' Miss. 534, 7 So. Rep. 541. 3. Magrew v. Foster, 54 Mo. 258. In North Carolina an affidavit which fails to show that the defendant "can not, after due diligence, be found in this state," does not warrant an order of publication. Faulk v. Smith, 84 N. C. 501. In Nexo York an afiidavit to obtain an order for service of the summons by publication which averred that the plaintiff would be unable, with due diligence, to make personal service within the state, because he could not be found therein and resided in an- other state, where his place of busi- ness was, this was held to be suffi- cient proof of inability to make per- sonal service, and the attachment was sustained on a motion to vacate. Matthews v. Gilleran, 12 N. Y. S. 74, 58 Hun (N. Y.) 607. 4. As for example of what is re- quired : The California code prescribes that before jurisdiction can be obtained by publication, it must be made to ap- pear by affidavit that the defendant resides out of the state or has de- parted, or can not, after due dili- gence, be found in the state ; or that he conceals himself to avoid the serv- ice of summons, etc. If this affidavit be insufficient, no jurisdiction will be acquired. Braly v. Seaman, 30 Cal. 610. In 3Iichigan a substituted service on the ground that the defendant can not §217 THE PURPOSE OF PUBLISHING NOTICE. 427 sonal service, the publication of notice, as required by the statute, must then be resorted to ; and such publication must be made in strict accordance with the provisions of tlie attach- ment statutes, or the court will not acquire sufficient jurisdic- tion to render judgment therein. Mere irregularities in the publication do not, however, always defeat the jurisdiction of the court in proceedings by original attachment.* Irregulari- ties may often be amended.^ be found can not be made until after the time has expired for tlie making of personal service; i. e., six days be- fore the return day. Hubbellv. Rhine- smith, 85 Mich. 30, 48 N. W. Rep. 178 ; Nicolls V. Lawrence, 30 Mich. 395. Where an attachment was issued April 20, failure to make publication of the summons or other service of the same prior to May 21, is fatal to the continuance of the writ, requiring service to be made within thirty days after the warrant is granted. Union Distilling Co. v. Ruser (Sup.), 16 N. Y. S. 50, 61 Hun (N. Y.) 625. In Wisconsin, under one section of the statute providing that if the de- fendant's property be attached, and personal service or substituted service upon him can not be had, service may be made by publication; and under another section providing that in order to enforce a lien, the plaintiff may at- tach the property upon which the lien is claimed as in personal actions, it was held that, where a contractor was getting out logs for a lumber company an attachment upon the logs for work done on them for the contractor, and for supplies furnished to him was suf- ticient to support service upon him by publication and gave the court juris- diction to adjudge a lien upon the logs. Shearer v. Davis & Star Co., 78 Wis. 278, 47 N. W. Rep. 360. 1. Simmons v. Missouri Pac. Ry. Co., 19 Mo. App. 542. 2. In 3Iichigan publication of notice within thirty days after the return day of the writ, as required by the statute, on a failure to make personal service, is a substitution of personal service and gives the court jurisdiction, but on failure to publish such notice within such time the court loses jurisdiction to proceed further. Millar -y. Babcock, 29 Mich. 526. But after such substi- tution for personal service and proof of publication made, both parties, so far as relates to the question of ap- pearance and pleading, stand in the same position as they would have oc- cupied on the return of a summons personally served. Thompson v. Thomas, 11 Mich. 274. Further as to publication in Michigan, see Hubbard- ston Lumber Co. v. Covert, 35 Mich. 254; Cochrane v. Johnson, 95 Mich. 67, 54 N. W. Rep. 707. In Kansas where the real estate of non-residents is sought to be attached on an order issuing at the time of filing the petition, an affidavit for service by publication must be filed, and the first publication made within sixty days from the date of the filing of the petition and other necessary papers. Therefore where the affidavit for con- structive service and the first publica- tion thereof was not made for more than thirteen months after the filing of the petition and the issue, levy and return of the order of attachment, the attachment fails because no action has 428 EXECUTION OF THE WRIT. §218 The time when the publication of notice must be made is so much a matter of local provision as not to demand treatment in a general work like this. It may, however, be said that the publication is not usually begun until after seizure is made of the property.* § 218. As to the publication itself. — The publication must be made within the time limited by the statute,^ and both the notice and the publication thereof must comply strictly with the controlling statute, or the court will acquire no jurisdiction of the person of the defendant, and the judgment will be void.' When the statute requires an affidavit of the circumstances which renders the publication of notice necessary, the require- ments must be strictly followed or the publication will not be justified and will be unavailing.* The notice must be pub- been commenced. Jones r. Warnick, 49 Kan. 63, 30 Pac. Rep. 115. See also Claypoole v. Houston, 12 Kan. 324. In Ncbrasl-a, lands conveyed to a non-resident in fraud of creditors may be subjected to the payment of the actual owner's debts when service is had by publication. Keene v. Sallen- bach,\5Neb. 200. In Indiana the code permits publi- cation in attachment proceedings to be made before the writ is levied. Sawyer v. Sawyer, 16 Ind. 213. 1. Baumgardner v. Bono Fertilizer Co., 58 Fed. Rep. 1. But in Missouri the court can order the publication of notice to defendant before his property has been seized. Tufts V. Volkening, (Mo. Sup.) 27 S. W. Rep. 522, s. c. 51 Mo. App. 7. 2. Alton V. Lee, 6 Wis. 478; Majari- etta V. Saenz, 58 How. (N. Y.) Pr. 505. 3. Haywood •;;. Collins, 60 111. 328 ; McLaughlin v. Wheeler, 1 S. D. 497, 50 N. W. Rep. 834. 4. In Xeio York, where the ground for belief must be shown under one stat- ute, it was necessary, to justify an order for publication of notice to a defendant, resident in the state, as absent or concealed, for the affidavit to state the circumstances of the de- fendant's absence, and the probable duration thereof, together with the names and residence of the persons from whom the information of such, absence was derived. Evarts v. Beck- er, 8 Paige (N. Y.) 506. Ill Illinois, in an affidavit for publi- cation it will be sufficient if the plaintiff states upon oath that in con- sequence of information obtained he believes the place of defendant's residence to be that named therein. Malaer v. Damron, 31 111. App. 572. It is not necessary that it should state what counties the w^rits were issued to, or to give a description of the property attached. Moi'ris v. Trus- tees, 15 111. 2G6. A statement of the date of the writ being unnecessary, a notice of publication will not be fatally defective if it recites a date to the writ subsequent to the return term. Forsyth v. Warren, 62 111. 68. In computing the time which shall intervene between the first publica- §218 AS TO THE PUBLICATION ITSELF. 429 lished for the full time required by the statute or order. Where notice is ordered to be published for a certain time, the pass- tion of the notice and the term of court, the rule is to exclude the day on which the notice is first inserted and include the day on which the term commences. Forsyth v. Warren, 62 111. 68. In Indiana, the notice by publica- tion need not show that the proceed- ings are in attachment; it will be sufficient if it avers the pendency of the action. Dronillard v. Whistler, 29 Ind. 552. And an error by insert- ing a wrong initial in the name of the plaintiff in the notice of the pendency of the action will not render the judgment and subsequent proceedings void. The proceedings, however, will be erroneous and will be liable to re- versal in an appellate court, but they are good until thus questioned. Mor- gan V. Woods, 33 Ind. 23. And a proper notice duly published is not void by reason of its concluding with a notice to the defendant that unless he appear at court the matter will be heard and determined in his absence. Ziegenhager v. Strong, 1 Ind. 296. In Iowa, a substantial compliance with the statute regarding the notice to an absent debtor of attachment jiroceedings against his goods, is sufficient. Bretney v. Jones, 1 Greene (Iowa) 366; Bardsley v. Hines, 33 Iowa 157. In Kansas, the return of the officer must show that he attached the prop- erty of the defendant. Repine v. Mc- Pherson, 2 Kan. 340. And the affi- davit for service by publication should expressly state that the property therein described has been attached and is sought to be subjected to the plaintiff's debt. Code Civil Proc, § 72. But where this may be inferred irom what is stated, the affidavit is only voidable and must be amended, even after judgment, so as to embody such commencement of the action. Long V. Fife, 25 Pac. Rep. 594, 45 Kan. 271. The publication of notice must describe the land, or it will be defective. Cohen v. Trowbridge, 6 Kan. 385 ; Cackley v. Smith, 38 Kan. 450, 17 Pac. Rep. 156. As to the lack of necessity for the issuance of an or- dinary summons after the publication of notice has been begun, see Bannis- ter V. Carroll, 43 Kan. 64, 22 Pac. Rep. 1012. In Mississippi, the notice required to be given to a non-resident debtor must be given by a publication in the newspaper. Moore v. Williams, 44 Miss. 61 ; Patrick v. Dillard, 44 Miss. 384. As to the manner in which the sei'vice by publication may be made, see Tupper v. Cassell, 45 Miss. 352. As to the time in which the publica- tion shall be made in order to obtain a valid judgment, see Calhoun v. Ware, 34 Miss. 146. And as to the proper certificate of the same, see Wood V. Page, 55 Miss. 105. As to notice required by the act of Jupe 17, 1852, and the publishing of the same in the state where the non-resident defendant resides, see Ridle}"- v. Rid- ley, 24 Miss. 648, and Calhoun v. Ware, 34 Miss. 146. In 3Iissom-i, the notice to an absent defendant by publication must state "that his property has been attached," or the judgment will be void. Drake V. Hale, 38 Mo. 346. However, a no- tice by publication that an action is commenced against him "by petition and attachment" is sufficient notice that his property has been attached. Moore v. Stanley, 51 Mo. 317, The notice shall state "the nature and. 430 EXECUTION OF THE WRIT. 218 ing of a law altering the time of holding terms of court does not authorize the rendition of judgment against the defendant amount of the plaintiff's demand." The statement that the proceedings are "founded on two promissory notes for the sum of §386.9-4" is not suffi- cient. Haywood v. Russell, 44 Mo. 252. But for contrary decisions under former statutes, see Sloan v. Forse, 11 Mo. 126; Davis v. Forse, 11 Mo. 130; Gates V. Clavadetscher, 19 Mo. 125. It is only where the affidavit for the attachment is based upon other grounds than those entitling plaintiff to an order of publication that an ad- ditional affidavit setting forth grounds for an order of publication becomes necessary. Bray v. Marshall, 75 Mo. 827. In this state the courts have power to award orders of publication on affidavit at the same term the suit is commenced. Freeman v. Rollins, 45 Mo. 315. And the clerk of the cir- cuit court has power to make the or- der and publications in all cases where the court in term should have made them; and this power is not limited to the vacation which pre- cedes the first session of the court after the petition was filed — Kane v. McCown, 55 Mo. 181— but it may be ordered by him in vacation after the lapse of two terms from the date of the process and without any new affi- davit. Johnson v. Gage, 57 Mo. 160. In South Dakota, under a statute providing for an attachment "in an action," and that an action shall be deemed commenced when the sum- mons is issued, provided that personal service of such summons shall be made or publication thereof commenced within thirty days, the publication begun on the 31st day will, of course, be too late. McLaughlin v. Wheeler, 1 S. D. 497, 50 N. W. Rep. 834. But in New York a delay after the issuance of an attachment of two years and seven months before publishing the notice, but where there had been immediate seizure of the debtor's property, did not divest the court of jurisdiction where the appointment of trustees in such proceeding precludes the debtor from making the objection. Matter of Clark, 3 Den. (N. Y.) 167. § 638 of the New York code, civil proc, however, provides that "per- sonal service of the summons must be made upon the defendant against whose property the warrant (of at- tachment) is granted within thirty days after the granting thereof, or else before the expiration of the same time service of the summons by publication must be commenced, or service thereof must be made without the state; * * * and, if publication has been or is thereafter commenced, the serv- ice must be made complete by the con- tinuance thereof." By force of this, a personal service made without the state, under an order for publication v.dthin thirty days after the attach- ment was granted, is sufficient to pre- serve the lien of the attachment. United Yerde Copper Co. v. Tritle, 20 Abb.N.C.(NA^.)57. And under this sec- tion when the summons in an attach- ment is ordered to be pubhshed in two daily papers and the New York Law Journal, although the publication in two is begun before the expiration of the thirty days and in the one not till after such time, the delay is fatal to the attachment. Union Distilling Co. V. Ruser, (Sup.) 16 X. Y. S.51,61 Hun (N. Y.) 625, 21 Civil Proc. Rep. (N. Y.) 293. In North Carolina an affidavit is in- sufficient to justify a publication when it states that the defendant "is a non* § 219 OTHER ACTS THAN PUBLICATION NECESSARY. 431 until after the lapse of time required.* Nor will the failure of a newspaper to make publication excuse the plaintiff from making due publication, though he be without fault. ^ Nor will a subsequent continuous publication give jurisdiction, where such publication is required to be begun within a certain time after the granting of the attachment which can not then be done.' The giving of notice by publication, in conformity to the law in force at the time of the commencement of the suit, will not be affected by a subsequent statute changing the manner of giving notice.* §219. Other acts than publication necessary — Mailing, posting and filing notices — Inventory. — Many statutes require something further to be done to complete a constructive service than the publication of the notice of the attachment, and what- ever act or acts it requires must be strictly performed; for the omission of any preliminary step, necessary to the acquire- ment of jurisdiction, will render the whole proceedings void, even when collaterally attacked. If the statute require in an attachment against non-residents, in addition to the publica- tion of notice, that the clerk shall send a copy of the notice by mail to the defendant, when his place of residence is stated in resident of this state." It should also Coldw. (Tenn.) 272. Further, see state that he "has property within the Riley v. Nichols, 1 Heisk. (Tenn.) 16. same." Spiers v. Halstead, 71 N. C. As to the time see § 4264, M. & V.'s 209. As to the lack of necessity of an Code, 1884; Lowenstine v. Gillespie, advertised or written notice in garn- 6 Lea (Tenn.) 641. ishment proceedings against an "ab- 1. Saffaracus v. Bennett, 7 Miss. (6 sconding debtor" see Parker v. Gil- How ) 277. reath, 7 Ired. (N. C.) 400. 2. Yerkes v. McFadden, 36 N. E. lu Tennessee, where the o fR c e r Eep. 7, 141 N. Y. 136. granting the attachment fails to make 3. Yerkes v. McFadden, 36 N. E. an order of publication, as provided Rep. 7, 141 N. Y. 136. by law, the court, or the clerk of the The defendant will not be excused court, or the justice before whom the because of illiteracy from knowing attachment is returned, may make the contents of a written notice and such order at any time thereafter, and making a defense in due time. Sut- without such order, together with ton v. Gunn, 86 Ga. 652, 12 S. E. Rep. proper publication, the attachment 979. will be void. Rogers v. Rush, 4 4. Parsons v. Paine, 26 Ark. 124, 432 EXECUTION OF THE WKIT. §219 the affidavit, judgment can not be rendered against a non- resident defendant, who has neither appeared nor been served with summons, unless notice has been sent to him by mail. Nor will the lack of such service by mailing be cured by a re- cital in the judgment that it is rendered upon " due proof of publication of notice/' because the publication is distinct from the mailing,^ All the acts prescribed are generally pre-requisite to the acquiring of jurisdiction.^ In Alabama, however. 1. Dennison v. Taylor, 142 IlL 45, 31 N. E. Rep. 148; Schwartz v. Cowell, 71 Cal. 306, 12 Pac. Eep. 252. The affidavit of the clerk that he mailed notices addressed as follows "one copy to A. T. & F.W. Dennison," giving the address, will not be suffi- cient to give jurisdiction when the affidavit and declaration show that "A. T. Dennison and F. "VV. Denni- son "are the plaintiffs without averring that they are copartners. Schwartz v. Cowell, 71 Cal. 306, 12 Pac. Eep. 252. Kansas, deems the failure to leave a copy of the attachment with the oc= cupant a mere irregularity when pos- session was taken of the property. Wilkins v. Tourtellott, 28 Kan. 825. In Mississippi the failure of a cred- itor,in bringing an attachment against a non-resident, to file ''with the proper officer his affidavit, if the affidavit for the attachment does not contain such notice, showing the post-office address of the defendant, or that he has made diligent inquiry to ascertain it with- out success," will render all sub- sequent proceedings in the cause void. Drysdale v. Biloxi Canning Factory, 67 Miss. 534, 7 So. Rep. 541. 2. Baldwin v. Ferguson, 35 III. App. 393. Wheaton v. Neville, 19 Cal. 41. And the record must show these facts, to withstand collateral attack. Baldwin v. Ferguson, supra; Thorn- meyer v. Sisson, 83 111. 188. The statute requiring that the sheriff, after recording the attach ment papers, shall serve them upon the occupant of the property, if there be one, otherwise to post them upon the property, posting instead of serv- ing is proper if the officer can find no occupant when he goes to make the levy. Davis v. Baker, 72 Cal. 494, 14 Pac. Rep. 102. When the statute provides that "if there be no occupant" the copy should be posted "in a conspicuous place" a return that the writ was served by posting a copy on the premises, with- out the statement in such return that they were occupied, is not sufficient and the proceedings thereunder will be void. Mickey v. Stratton, 5 Sawyer C. Ct. 475, And when the statute requires that if the defendant have no residence within the precinct of the officer, then by mailing a copy to him and serving a like copy on the person, if any, in possession of the real estate, a return thereon that the w'rit had been served upon a non-resident by mailing a copy to him, without any allusion in such return to service upon any person in possession of the land, the court will get no jurisdiction. Richmond v. Brookings (Cir. Ct.), 48 Fed. Rep. 241. As to personal service of a copy of the summons and complaint outside of the state not being equivalent to publication and deposit in the post- §219 OTHER ACTS THAN PUBLICATION NECESSARY. 433 under a statute requiring written notice of the levy, a sheriff's return stating "that the defendant had personal notice of the attachment," was deemed sufficient, on the presumption that sworn officers discharge their duties lawfully.^ Some statutes require that if the defendant can not be found in the county, then copies or notices shall be left with the person in possession of the property, if there is one, and if there is not, then by posting in a ''conspicuous place." When there is such a requirement, the statute requires that the officer shall use due diligence to secure the best service, and may not adopt an inferior one until after reasonable diligence running through the time given for it and all superior modes are found impracticable.^ office when publication from the marine court of New York City is ordered, see Tyler v. Williams, 9 Daly (N. Y.) 451. 1. Fears v. Thompson, 82 Ala. 294, 2 So. Rep. 719. But in Kansas it is said that it will be presumed that the officer did his duty when he attached the property, and therefore a service was deemed to have been properly made when the return of the otjicer showed that he attached certain real estate, and that when he attached the same he in fact took possession thereof and left a true copy of the order, but failed to state in so many words that he left a copy with the occupant, or, if there was no occupant, then in a conspicuous place on the real estate. Wilkins v. Tour- tellott, 42 Kan. 176, 22 Pac. Eep..ll. 2. Town V. Tabor, 34 Mich. 262 ; Davis V. Baker, 72 Cal. 494, 14 Pac. Eep. 102. The statute requiring that the offi- cer should, when attaching real estate of a non-resident, leave a copy of the process with the person who "has charge or possession of the estate at- Att. 28 tached" was properly complied with in an attachment against the non- resident heir when such copy was left with the administrator, rather than the tenant in possession under him. Stone v. Hawkins, 56 Conn. Ill, 14 Atl. Rep. 297. If affidavits be filed to show that no person was in possession of the lands, the return may, however, be amended so as to show that fact necessary to the legality of other acts in such an event. Richmond v. Brookings, 48 Fed. Rep. 241. In regard to a "conspicuous place" it is said that in attaching a lot having a small building upon it, post- ing the attachment papers upon the building complies with the require- ment of the statute that they should be posted in a "conspicuous place" upon the property. Davis v. Baker, 72 Cal. 494, 14 Pac. Rep. 102. And if posted on the side of a house next the street, the house being near a corner, and there being a vacant lot opposite the side of the house, yet if the notices can be easily and plainly Been by passers-by, it will be in a 434 EXECUTION OF THE WRIT. §219 Who is a proper person with whom the sheriff may leave a copy, is a question that is usually determined by the specific directions of the statute.* "conspicuous place." Davis v. Baker, 88 Cal. 106, 25 Pac. Rep. 1108. Posting a "notice" instead of a copy is insuflBcient. Sharp v. Baird, 43 Cal. 577. The posting of notices "in three of the most public places within the precinct" as required, is satisfied by- one of such notices being posted on the front door of the court-house and one on a side stairs leading to the justice's office, and one on a certain corral fence, when "these places were then regarded, and would now be, three about as public places as could be found in the precinct." Conway V. John, 14 Colo. 30, 23 Pac. Rep. 170. As to the posting at the front door of the court-house in Mississippi, as well as publication, see McKey v. Cobb, 33 Miss. 533. As to the posting at the front door of the court-house in Virginia, as well as publication, see Petty v. Frick Co., 68 Va. 501, 10 S. E. Rep. 886. As bearing upon the subject in Wiscon- sin, see Champion v. Argall, 25 Wis. 521. 1. In Missouri, the term "family," as used in the act regulating the serv» ice of process, is not confined to per- sons under the defendant's control or in his employ. A widowed mother who resides with her son is a member of his family within the meaning of the act. Ellington v= Moore, 17 Mo. 424. In Neio Mexico, no publication is necessary if, in the absence of the de- fendant, a true copy of the original process be left with some person over fifteen years of age. Spiegelberg v. Sullivan, 1 N. M. 575; Bell v. Gay- lord, (N. M.) 27 Pac. Rep. 494. In Co7i7iecticut, the attested copies must not be delivered for service to the person in charge of the property attached, unless the non-resident de- fendant has no agent within the state. Cady v. Gay, 31 Conn. 395. A copy duly indorsed, and left at the wrong house by mistake, will be in- effectivOo Buckingham v. Osborne, 44 Conn. 133o An agent of a foreign insurance company, sent out to solicit risks, is not such an '-agent" as is contem- plated in the Pennsylvania act re- garding the service of process of at- tachment. The sheriff's return, to be conclusive, should set forth an agent's special character and place of busi- ness. Liblong V, Kansas Fire Ins. Co., 82 Pa. St. 418. In Michigan, one section of the statutes provides that if the defend- ant can not be found within the county and he has no place of resi- dence therein, the constable shall serve a copy of the attachment and inventory certified by him with any person having possession of the goods. Another section provides that if the attachment be returned person- ally served upon one of the defend- ants, the justice chall proceed as upon a summons personally served. Con- sidering these provisions it was held that where the attachment was j^er- sonally served on one defendant, the officer attaching the goods of both and not being able to find the co- defendant, who had no last place of residence in the county, leaving a copy of the attachment and inventory with the other defendant, in whose possession the goods were found, the service was good as to both. Buehler §219 'OTPIER ACTS THAN PUBLICATION NECESSARY. 435 When the controlling statute requires that when a levy is made upon real estate having no occupant the copy of the writ shall be posted in a conspicuous place thereon, a levy can not be made upon distinct tracts by posting such copy on one of them only.^ It is an exception to the rule for a statute to provide for the levy of an attachment upon land without providing for some act giving notoriety to the fact, or recording the same, except by a return of the writ to the proper court. ^ Some statutes provide for the filing with the clerk of the no- tice of the attachment stating the names of the parties to the action, and the amount of the plaintiff's claim, and a descrip- tion of the particular property levied upon, etc., to be recorded and indexed by the clerk in like manner as notices of the pen- dency of an action.' In New Hampshire it is the very essence of an attachment of real estate that a copy of the writ and re- turn of the attachment should be left with the town clerk.* In V. De Lemos, 84 Mich. 554, 48 N. W. Rep. 42. 1. Hall V. Stevenson, 19 Ore. 153, 23 Pac. Rep. 887. But where a levy was made upon a number of town lots, the failure to place a copy on each separate lot did not render the service void in Kan- sas. Blake v. Rider, 36 Kan. 693, 14 Pac. Rep. 280. After a subdivision into lots and blocks and the sale of some of them to third person, the levy on attach- ment by the description of the prop- erty as it was described by such sub- division will be a nullity and a sale thereunder will not convey title. Henry v. Mitchell, 32 Mo. 512. 2. For such exceptions see Lackey V. Seibert, 23 Mo. 85. 3. Hodgman v. Barker, 128 N. Y. 601, 14 N. Y. S.574. See, also, Sykes V. Keating, 118 Mass. 517; Cheshire v. Briggs, 2 Mete. (]\Iass.) 480; Pomroy V. Stevens, 11 Mete. (Mass.) 244. Under an Iowa statute providing that all attachments on land shall be certified by the deputy clerk, at places other than the county seats, forthwith to the clerk of the district court at the county seats, who shall enter them on his records as if originating there, a writ issued out of the district court held at a place other than the county seat, and was levied on real estate, it was held, that although the tran- script of the levy was not filed within the time required, a purchaser with- out actual notice of the attachment, and before the filing of the transcript, acquired a good title, notwithstanding the effort of the creditor to attach. Benjamin v. Davis, 73 Iowa 715, 36 N. W. Rep. 717. The entry of the levy, in the incum- brance book at the office of the clerk of the district court is not a compli- ance with the law requiring the tran- script to be sent to the county seat. Benjamin v. Davis, 73 Iowa 715. 36 N. W. Rep. 717. 4. Kittredge v. Bellows, 7 N. H. 399. 436 EXECUTION OF THE WRIT. § 219 Maine no lien is created by a levy on real estate as against sub- sequent purchasers, unless the officer making the levy files, within five days, in the office of the register of deeds, in the county or district in which some part of said real estate is situ- ated, an attested copy of so much of his return on the writ as relates to the attachment, with the value of the defendant's property which he is thereby commanded to attach, stating the names of the parties, the date of the writ and the court to which it is returnable.^ A filing or registry in any other office than that prescribed by the statute is useless, and adds nothing to the force of the pretended attachment.^ These examples will indicate to the practitioner and officer the necessity of a strict following of the provisions of the controlling statutes in supplementing or com- pleting the actual levy on real estate. When the acts regard- ing the giving of notice are performed in the manner pointed out by law, it will be considered as actual notice to all per- sons.' Such acts, for the giving of notice, are intended to ful- fill the same purpose as the taking of actual possession of per- sonal property by the officer. It is notice to all the world of the levying of the attachment and a taking of possession of the defendant's property in the land by the officer. The levy of an attachment upon real estate in the manner provided by law — as by filing a copy of the attachment with a description of the property attached in the county recorder's office — creates a valid lien, although no service is had upon the attachment-defendant until after the necessary issuing of an alias writ to obtain service thereof upon him.* It is not, however, necessary that ture and amount of the plaintiff's the officer himself should leave the demand is set forth in the proper copies. They may be sent by a ser- counts or a specification thereof is an- vant of the ofiicer. Pemigewassett nexed to the proper writ. Osgood v. Bank v. Burnham, 5 N. H. 275. Holyoke, 48 Me. 410. 1. Carleton v. Ryerson, 59 Me. 438; 2. Page v. Generes, 6 La. Ann. 549; Bacon v. Denning, 33 Me. 171 ; Nash Stockton v. Downey, 6 La. Ann. 581. V. Whitney, 39 Me. 341 ; Neally v. 3. Davenport v. Lacon, 17 Conn. Judkins, 48 Me. 566 ; Saco v. Hopkin- 278. ton, 29 Me. 268. 4. Raynolds v. Ray, 12 Colo. 108, It is also specified that no lien is 20 Pac. Rep. 4. created on real estate unless the na- § 219 OTHER ACTS THAN PUBLICATION NECESSARY. 437 Any attachment of real estate which is invalid when made can not be rendered valid by any subsequent amendment of the writ.^ It is said that, although an objection to the failure to post the attachment and citation, as required by the attachment act, may be interposed by any person, yet, when the objection is raised by a person not a party to the proceeding, the burden of proving the omission, though involving a negative rests upon him.^ In some states no lien is created, unless the officer making the levy also makes an inventory and an appraisement of the land and then a return that it is attached." If there is a statutory provision relating to the service of a copy of an inventory upon the person in possession of the goods such act is necessary to the jurisdiction and must be strictly performed.* And the provision for such an act is none the less obligatory when it is prescribed as part of the act of personal service upon the defendant,' unless the defendant ab- sconds from the county and state ; this constitutes a waiver of service of copies of the writ, affidavit, undertaking and inven- tory.' And the service of a copy of an inventory will not be 1. Drew V. Alfred Bank, 55 Me. 12 Pa. Co. Ct. R. 389; Griffisi'. Swick, 450 (Pa. Com. PI.) 2 Pa. Dist. R. 550. 650 2. Mithoff V. Dewees, 9 La. Ann. A delay of four days after the ser- '^' vice of the writ in furnishing an in- 3. Tomlinson v. Stiles, 28 N. J. L. ventory of a stock of men's clothing 201- is not unreasonable. Wilson v. Shap- The sheriff, in attaching real estate, iro, (Pa.Com. PI.) 12 Pa. Co. Ct. Rep. must go to the owner or person in pos- 466; Wilson v. Shapiro, 2 Pa. Dist! session, and declare to him that he Rep. 367. attaches the property ; if there be no 5. Langtry v. Wayne Circuit Judges, person in possession, he must make 68 Mich. 451, 36 N. W. Rep. 211. the declaration on the premises, and In an attachment before I justice if there are several distinct lots lying personal service of the writ is insuffi- in different places, he must proceed cient, unless made after levy and ac- in tliis manner with respect to each companied by an inventory of the lot, but where the several lots consti- property seized, as provided by § 6840 tute one farm this is unnecessary. How. St. Mich. Langtrv v. Wayne Tomhnson v. Stiles, 28 N. J. Law Circuit Judges, 68 Mich. 451, 36 N W 201 Rep. 211. 4. Swick «. Griffis (Pa. Com. PI.) 6. Thomas v. Richards, 69 Wis. 671, 35 N. W. Rep. 42. 438 KXECUTION OF THE WKIT. § 220 sufficient, if a copy of the attachment is required also. The statute must be followed substantially^* § 220. Publication and other required acts must appear upon the record to have been performed. — Where there has been no personal service the record must show affirmatively that the defendant was duly notified of the proceedings against him, or that he appeared.*^ Proof of all the acts required by statute must show upon the record; they can not be made thereafter by parol.' When the statute requires a publication and mailing of notice thereof to the non-resident's abode, when known, the record must show that the clerk mailed to him a copy of the notice of publication.* The record must show both the publication and the mailing or it will not stand a collateral attack.** In Indiana proof must not only be made before judg- ment is rendered, that the defendant had notice by advertise- ment, but the record must either state that such evidence was given, or must itself contain the evidence.® But it has been 1. Stearns v. Taylor, 27 Mich. 88. But the fact that the copy of the at- tachment served was not certified by the officer, is merely a formal defect, whicli does not render the service in- valid, where it is, in fact, a ti'ue copy and where it is accompanied by a copy of the inventory of property attached, duly certified. Leonardo. Woodward, 34 Mich. 514. On the contrary such a provision in the New York code has been said to be directory merely, and a failure to comply therewith, a mere irregularity, which would not of itself invalidate a levy. Adams v. Speelman, 10 N. Y. S. 364. 2. Crarj' v. Barber, 1 Colo. 72. 3. Haywood v. Collins, 60 111. 328; Haywood v. McCrarj', 33 111. 459. A certificate of publication, where there is no personal service, must ap- pear to have been made by the printer or publisher of the newspaper in which notice was published, and the cer- tificate should state the date of the last paper containing such notice. Hay- wood V. McCrary, 33 111. 459. If the certificate of the printer or publisher be offered in proof of pub- lication, it must conform to the re- quirement of the statute. It must ap- pear that he was a printer or publisher. If there be no proper certificate, and the court does not find in its judgment that notice of some kind was given, the judgment in attachment will fail. Haywood v. Collins, 60 111. 328. 4. Thormeyer v. Sisson, 83 111. 188. 5. Baldwin v. Ferguson, 35 111. App. 393; Haywood v. Collins, 60 111. 328. 6. Foyles v. Kelso, 1 Blackf. (Ind.) 215. The affidavit of the person who mailed a copy of the notice must show on what day of the month or year such copies were mailed. Briggs v. Finn, 10 Iowa 590. § 221 EXTENT TO WHICH ERRORS ARE WAIVED. 439 held in Vermont, under a statute requiring the recording of a copy of the attachment whether the officer left a certified copy of the attachment with the town clerk, and directed him to record the substantial part, the attachment was valid as against one who had seen the copy filed, although the substance was not recorded, and though the copy varied from the original in an unimportant particular.' Under a statute providing that when a copy of the writ has not been served personally on the defendant and he does not enter his appearance in the suit, the plaintiff may, on filing the affidavit of publication, etc., file the declaration and pro- ceed to judgment as if personal service had been obtained, a delay of several days after filing the declaration before filing the affidavit rendered the judgment void.^ The order of publication is likewise, in Tennessee, required to be placed upon the minutes or rule docket of the court, as soon as the attachment is levied upon the property of the de- fendant and the attachment returned.* § 221. The extent to which errors in the levy and personal service are waived by appearance. — It is certain that defects and irregularities in the proceedings had to obtain jurisdiction of the person of the defendant are waived by a general appear- ance of the defendant thereafter; but it is not an equally well established principle that irregularities in the seizure of the property may be waived by a personal appearance.* It seems, however, that when the defendant appears, and tries the issues on the attachment generally, that he waives curable defects in the attachment process and levy; but it is certain that he does not waive jurisdictional defects therein. It is a fundamental principle that the court must obtain jurisdiction of the property, 1. Huntington v. Cobleigli, 5 Vt. 49. the main action. Reed v. Maben, 21 2. Steere v. Vanderberg, 67 Mich. Neb. 696, 33 N. W. Rep. 252. 530, 35 N. W. Rep. 110. In Connecticut, if the defendant sup- 3. Rogers v. Rush, 4 Cold\v.(Tenn.) pear in court and plead to the merits 272. it will be a waiver of service upon 4. The attachment rests upon its himself personally, but will not in- own facts and not upon the facts of validate the attachment. McGuire ». Church, 49 Conn. 248. 440 EXECUTION OF THE WRIT. §221 or the sale of it by order of the court may be successfully at- tacked collaterally.^ 1. In Nebraska an acknowledgment of service is equivalent to actual serv- ice. Cheney v. Harding, 21 Neb. 65, 68. In Alabama the appearance of the defendant waives any defect in the process of its service, and will render a judgment by nil dicit valid. Gold- smith V. Stetson, 39 Ala. 183. But if the process is void the plaintiff can not recover in the statutory claim suit. Neither will the consent or waiver on the part of the defendant remedy the defect. Jackson v. Bain, 74 Ala. 328. If the notice has not been served upon the defendant with- in the time required by the statute, a general appearance will waive such defect, and by filing pleas involving a recognition of the writ, and by going to trial without objection, the defend- ant thereby enters a general appear- ance. H. B. Clafiin Co. v. Roden- berg, (Ala.) 10 So. Rep. 521. See further as to appearance and waiver, Hutchinson v. Powell, (Ala.) 9 So. Rep. 170. But a motion by the defendant to dissolve the attachment can not have the effect of a general appearance. Moore v. Dickerson, 44 Ala. 485. And in Ohio the same principle ob- tains. The defendant, moving the court to dismiss the process, only comes in to save his property. His act, at most, can only be construed to be an admission of service. Jurisdic- tion can only be obtained in the mode authorized by the statute. Egan v. Lumsden, 2 Disney (Ohio) 168. In Arkansas a general appearance by attorney will estop the defendant from attacking the judgment collater- ally in the state, but if a judgment be sued on in another state, he may suc- cessfully defend by showing that the attorney who entered an appearance for him had no authority to do so. Eaton V. Pennywit, 25 Ark. 144. But in North Dakota, where the summons is not served and the publi- cation is not properly made within the time allotted, the provisional jurisdiction acquired by the levy is lost and the subsequent appearance of the defendant will not revive the at- tachment. Rhode Island Hospital Trust Co. V. Keeney, 1 N. D. 411, 48 N. W. Rep. 341. In Neio Jersey one section of the statute provides that after a general appearance by defendant, the suit shall proceed as if commenced by summons, and no other claim shall be put in. Another section provides that, in case of such an appearance the lien of the attachment shall con- tinue. In view of these provisions a general appearance waives ^11 defects in the attachment. Connelly '».Lerche, 56 N. J. Sup. 95, 28 Atl.. Rep. 430; Wenzel v. Lerche, 56 N. J. Sup. 95, 28 Atl. Rep. 430. In New York an attachment is valid though there was no service on de- fendant, if he appears voluntarily, Pomeroy v. Ricketts, 27 Hun (N. Y.) 242. And the provision of the code that when the attachment is issued, "if publication has been or is there- after commenced, the service must be made complete by the continuance thereof," does not prevent a waiver of the completion of service by a gen- eral appearance under a section which provides that such an appearance is the equivalent of personal service. Tuller V. Beck, (N. Y.) 15 N. E. Rep. 396, 46 Hun (N. Y.) 519. And an at- tachment begun by personal service 441 S 221 EXTENT TO WHICH ERRORS ARE WAIVED. Where an action is commenced by attachment, and the de- fendant, though not personally served, appears by counsel and answers without controverting the plaintiff's claim, there is a of summons, but on affidavits defect- ively verified, remains in full force, unless set aside on motion duly made. Carr v. Van Hoesen, 26 Hun (N. Y.) 316. But the defendant's appearing does not revive an attachment invali- dated bv a failure to serve the sum- mons within thirty days. Blossom v. Estes, 22 Hun (N. Y.) 472. In Michifjan, the plaintiff havijig failed to file his declaration, as re- quired, the defendant appeared in the case and had default entered against the plaintiff. The default was there- after set aside under a stipulation that the defendant's appearance should not waive any irregularity or defect in the process or proceedings. It was held that the defendant was not precluded from making any objections to the proceedings which he could have made on a special appearance to complain of defects. Stearns v. Taylor, 27 Mich. 88. In Indiana a general appearance by the defendant estops him from suc- cessfully assaiUng the service of pro- cess. Crabb v. Orth, 133 Ind. 11, 32 N. E. Rep. 711; Abbertson u. Will- iams, 23 Ind. 612; Elliott's Appellate Procedure, § 677 and cases cited. In Connecticnt, a defendant may waive a defect in the service of the writ, although a party claiming an in- terest in the attached property may be injuriously affected thereby. Hatstat V. Blakeslee, 41 Conn. 301. In Texas, the court does not go to such an extent as in Connecticut, and only holds that if a writ of attachment is executed by an officer not author- ized to execute it, and the attaching creditors, the debtors or the debtor's assignee for the benefit of creditors. all waive their objections to the irreg- ularity, a subsequent judgment cred- itor can not complain. Walter v. Bickham, 122 U. S. 320. In Colorado it was held that the ob- jection that the levy of an attachment on mortgaged property was void as to the mortgagor because of defective service on him, was waived by the mortgagor by an appearance and mo- tion to quash, and that the objection could not be raised by any one else. Elliott V. First Nat. Bank, 2 Colo. App. 164, 30 Pac. Rep. 53. In C'aZi/orm'a, the misnomer, consist- ing in the omission of part of the name of the defendant corporation in the affidavit and undertaking, will not invalidate a levy of an attachment on its property if it waives the irregu- larity by appearing without objection. Hammond v. Starr, 79 Cal. 556, 21 Pac. Rep. 971. In Missouri, filing an answer to the merits is a waiver of the plea in abate- ment. Audenreid v. Hull, 45 Mo. App. 202. In Louisiana, where the defendant appears and bonds the property at- tached, he thereby waives citation. Williams v. Gilkerson-Sloss Commis- sion Co., 45 La. 1013, 13 So. Rep. 394. But the citation of an absentee in at- tachment can not be waived by a ctira- tor ad hoc. Ticknor v. Calhoun, 28 La. Ann. 258. See further, O'Hara v. Booth, 29 La. Ann. 817. In Wisconsin, a writ void because of an insufficient affidavit was cured by a general appearance, answer to the merits, and going to trial, and prob- ably would have been by any of these acts. Blackwood v. Jones, 27 Wis. 498. 442 EXECUTION OF THE WRIT. §221 general appearance and the plaintiff is entitled to a personal judgment, whether the attachment is sustained or not.^ But if such a judgment be sued on in another state, the plaintiff may successfully defend by showing that counsel appeared with- out authority so to do.^ But where a defendant appears spe- cially, to move to quash the return on the summons, such act will not constitute a waiver of the objection to the service, be- cause of the fact that it also prays judgment, whether it should be compelled to plead for the reason that it is a non-resident corporation.^ Nor will the overruling of an objection that the court had no jurisdiction because of want of proper service, be waived by the defendant's appearance and participation in the trial.* Nor is it a waiver of process for a defendant to move 1. Bank of Commerce v. Payne, 86 Ky. 446, 8 S. W. Eep. 856. 2. Eaton v. Pennywit, 25 Ark. 144. And where the defendant is per- sonally served with summons, and appears to take issue upon the allega- tions of the affidavit without making any defense in the main action, the court will acquire complete jurisdic- tion. Roy V. Union Mercantile Co., 3 Wyo. 417, 26 Pac. Rep. 996. Where in a suit against a firm con- sisting of two members, and one, a resident, is served with summons, while an order of publication should have been had against the other, a non-resident partner, as prescribed by the statute ; yet where both part- ners appeared by attorney, and sub- mitted motions or filed a plea, it was an appearance, and the court pro- ceeded as if both parties had been served. Andrews v. Mundy, 36 W. Va. 22, 14 S. E. Rep. 414. If property of a non-resident be attached, and service be had on him at his residence in the manner pro- vided by the statute, the appearance by him and a plea of want of jurisdic- tion will give the court power to enter a personal judgment against him and order an execution to be levied on the property attached. Barnett v. Ray- burn, (Tex.) 16 S. W. Rep. 537. A traverse of the affidavit is a gen- eral appearance, and waives such defects as an omission in the sheriff's return on a second attachment of a statement that he had indorsed on the copies a notice to defendants that the i^roperty seized was the same seized, inventoried, and appraised in the other attachment, as required by statute. First Nat. Bank ■;;. Green- wood, 79 Wis. 269, 48 N. W. Rep. 421. 3. N. K. Fairbank & Co. v. Cincin- nati, N. O. & T. P. Ry. Co., (Cir. Ct. App. ) 54 Fed. Rep. 420, 9 U. S. App.212. Nor where an attachment has not been personally served on the defend- ant, or a summons in lieu thereof, as required by the statute, will the defect be cured by the appearance of defend- ant and his attorney to object to the irregularity of the proceedings. Spet- tigue V. Hutton, (Pa. Com. PL) 9 Pa. Co. Ct. R. 156. 4. Lazzarone v. Oishei, (Super. Buff.) 21 N. Y. Supp. 267, 2 Misc. Rep. 200. § 222 AMENDMENT OF THE SERVICE OF THE WRIT. 443 to dismiss the attachment for want of jurisdiction, on the ground that the action was brought in the wrong county/ Where a plaintiff, by an action of replevin against an officer levying an attachment, prevents full service of the attachment by his writ of replevin and by procuring a traverse of the affi- davit in attachment to be made, he is estopped to deny com- plete service of the attachment.^ Where a defendant in attach- ment replevies the property attached as soon as the attachment is served, the only object of the sheriff's advertisement of the levy being to induce the appearance of the defendant, it need not be advertised ; the aj^pearance is effected by the replevin.' And it seems that the execution of a replevin bond, by the defend- ant in an attachment case, is a sufficient appearance to sustain a judgment by default, although the levy of the attachment be void, and there be no personal service of process.* § 222. Amendment of the service of the writ. — When the acts necessary to constitute a valid service of the writ have been actually performed, but some error has been made in the officer's indorsement of his doings, an amendment thereof is within the sound discretion of the court granting the writ,^ but generally where the necessary acts have not been performed, and the time for service has expired so that they can not then be performed, an effort toward obtaining service of the writ is wholly void. The issuance and service of a new writ will then be the only practical resource. However, it has been held in one case, under a statute requiring that the affidavit should be annexed to the attachment at the time the same was served, or the service would be invalid, that the attachment should not be dismissed because of a service of the writ without having the affidavit so attached, but that an opportunity should be given to the party to procure a valid service.® 1. Belknap v. Charlton, 25 Ore. 41, 4. Peebles v. Weir, 60 Ala. 413. 34 Pac. Rep. 758. 5. See post §238, "Amendment of 2. Herbst Importing Co. v. Burn- the Return." ham, 81 Wis. 408, 51 N. W. Rep. 262. 6. Simpson v. Oldham, 2 Chand. a. SLeynolds v. Jordan, 19 Ga. 436. (Wis.) 129. 444 EXECUTION OF THE WRIT. § 222 Where the original attachment writ is absent from the files, and there is no showing that it is lost, affidavits to show thafe it was served will not be admitted.^ , 1. Stroner v. Prokop, 30 111. App. 56.> CHAPTER XI. RETURN OF THE WRIT. §233. 234. 235. 236. 237. 238. 239. 240. §223. Necessity of the return. 224. By whom the return must be made. 225. Where the return must be made. 226. The return becomes matter of record, and can not, in gen- eral, be contradicted. 227. Return evidence in suit by or against officer making it. 228. When return should be made. 229. Formal parts of the return. (a) Must state what acts were done. 230. (b) Must state when the acts constituting the s e r v i c e were performed. 231. (c) Must contain description of the property attached and its location— Schedule or inventory. 232. (d) Same, second attach- ment. § 223. Necessity of the return. - Blaokstone says that -whatever the sheriff does in pursuance of the command of the writ he must 'return' " or certify to the court together wi^h v he writ itself.' The word "return" is used to/^'S^f * certificate of the officer indorsed upon the wrrt ^tatmg wl.at he has officially done and when and where, and to s"ch ^etam the court looks to see in what manner and to what extent its commands have been obeyed. Therefore it is of great rm- 1. 3 Blackstone Com. 273. (445) 241. 242. (e) Statement of the value of the property seized. (f ) Should state that prop- erty attached is the prop- erty of the defendant. (g) Should be dated, (h) Should be signed. Presumptions favoring the re- turn. Amendment of the return. (a) Generally. (b) AVhen the amendment may be made. (c) No amendment permit- ted that will affect inter- vening title or interest of a third person. (d) What errors may be cor- rected by amendment. (e) Effect of amendment of return. 446 RETURN OF THE WRIT. § 223 portance that the return should be full and correct, and that it should show an adequate compliance with the requirements of the statute in the service of the writ. The return is an ob- ject of great importance in two different respects. First, as to its effect upon the attachment, for if it does not show a proper service of the writ the attachment may be invalid, but if the defect be in the return and not in the service, the same may generally be amended and the plaintiff's lien under the attach- ment will not be affected. And second, the officer is charge- able with the proper service of the writ and he must justify his doings thereunder by his return thereon.* The levy is not complete until a statement of the manner in which it was made is indorsed upon the writ, and no steps can give validity to a levy not accompanied by such an indorse- ment.^ If the return does not show a sufficient levy, the court will get no jurisdiction." Proceedings in attachment must in all respects follow the statute authorizing them or no lien will be created.* And the return of the writ being required by the statute is necessary to create a lien upon the property seized.* And, furthermore, until the officer executing the attachment makes a return as to the defendant, the plaintiff can not properly proceed to judgment.® When the officer has several attachments put into his hands he should return all the property as attached on each of them.' When a bond of indemnity has been given to a sheriff to 1. See post, ^227, "Justification of corder's office, as hereinbefore shown. Sheriff." See ante, § 219. And until it is lodged 2. Sanger v. Trammel, 66 Tex. 361. there, the real estate is not holden by 3. Robertson v. Hoge, 83 Va. 124. the attachment. But it seems not to But the manner of making the re- be necessary that the officer should turn itself — Rodgers v. Bonner, 55 personally carry the copy of his re- Barb. (N. Y.) 9— and the indorse- turn to the office of register of deeds, ment, though insufficient, can not Kendall v. Irving, 42 Me. 339. See, effect the validity of the levy, and also, Fabre v. Bower, 2 Bay (S. C.) may be amended. See post, § 238. 124. 4. Fairbanks i;. Bennett, 62 Mich. 61. 6. Morris v. Trustees of Schools, 15 5. In the attachment of real estate, 111. 266. in many states, it is necessary to re- 7. Violette «. Tyler, 2Cranch C. Ct. cord a copy of the return in the re- 200. ^ 223 NECESSITY OF THE RETURN. 447 make a levy under an attachment, it must be returned with the papers in the attachment suit.' When the statute requires the sheriff to return, with his writ a full inventory of the attached property, it is imperative that it be done; but if the statute also provide that the couit shall give the plaintiff a reasonable time to perfect defective proceedings, an omission to attach an inventory being amend- able, subsequent attaching creditors are not entitled to priority over the attachment in which the inventory has been omitted, - and their only remedy is to compel an amendment of the ""^ The return does not become a matter of record until it is actually deposited in the office of the clerk of the court. Until the writ is returned into the actual possession of the clerk, the officer needs no permission of the court to make an amend- ment of his return indorsed thereon.^ But after it is returned into the clerk's office, any act by the sheriff is unauthorized and of no effect to correct his previous errors or omissions No return as to the person is necessary to give jurisdiction of the property, in a case where an affidavit of non-residence has been filed, and where a proper levy has been made. ^ No return need be made on the writ when the action, begun by attachment, has been settled before the writ was executed. The making of a return is alone sufficient to constitute a second levy by an officer who has theretofore made an attach- ment of property and placed the same within the possession of a receiptor, provided he also gives notice to the bailee that he must hold the property to answer the second levy; but it tlie property never came into the receiptor's possession, or has 1. Butler .. Alcus, 51 Miss. 47. graph Cable Co., [(Cir. Ct.) 55 Fed. And on a suit thereon, if the plea Rep. 738. denies that it was returned with the 3. Welsh v. Joy, 13 Pick. (Mass.) papers, and the plaintiff in his repli- 477. cation avers that it was so returned, 4. Wheaton . Neville, 19 Cal. 41. he holds the affirmative of the issue Further as to -Amendment of Re- and must prove it. Butler ^. Alcus, turn," see pos«, §238. J, ,r-,, J 5. Johnson v. Gilkeson, 81 Mo. 55. 2 Fleischner .. Pacific Postal Tele- 6.Atwell .. Wigderson, 80Wis.424, 50 N. W. Bep. 347. 448 RETURN OF THE WRIT. § 224 been returned by him to the defendant, the second levy can not be made without an actual seizure of it.* In Wisconsin the statute requires that an officer, serving a second writ of attach- ment on the same property against the same defendant, must state in his return that he indorsed on the copies a notice to the defendants that the property seized was the same that was seized, inventoried and appraised on the other attachment; but though the officer fail to make such statement the attachment will nevertheless be valid against a creditor, who, after traverse by the defendants, levies an execution on the property.^ § 224. By whom the return must be made. — The return on the writ must be made by the officer to whom the writ was di- rected, and if an attempt is made by any other officer to make a return, it is void.^ And if a statute authorizes a constable to make a levy on attachment to a certain amount when the writ is addressed to the sheriff, the constable must deliver the pro- cess and the property to the sheriff of his county, and the sheriff must make a return of it as if he had himself levied it.* Under a statute providing that after a levy on land a constable shall hand the writ to the sheriff, who shall return it to the clerk, the failure of the sheriff to indorse on the writ the date of his return will not make the subsequent proceedings in- valid if the constable's return was regular, and was entered on the sheriff's attachment docket.^ And although a statute require that when any deputy sheriff serves any writ he shall indorse thereon the proper return of the proceedings, and subscribe his own name as well as that of the sheriff thereto, the failure to subscribe the sheriff's name to a summons will not deprive the court of jurisdiction.® 1. Bell V. Shafer, 58 "Wis. 223. diction by an alias writ directed to the 2. First Nat. Bank v. Greenwood, sheriff and served on the constable as 79 Wis. 269, 48 N. W. Rep. 421. garnishee. Barnett v. Ring, 55 Miss. 3. 1 n e y v. Shepherd, 8 Blackf . 97. (Ind.) 146. 5. Spengler v. O'Shea, 65 Miss. 75, 3 4. McMeekin v. Johnson, 2 Dana So. Rep. 378. See further as to the (Ky.) 459. "Date," post, § 235. But if the constable should sell the 6. Kelly v. Harrison, 69 Miss. 856, property, the court can acquire juris- 12 So. Rep. 261. §§ 225, 226 WHERE THE RETURN MUST BE MADE. 449 § 225. Where the return must be made. — The writ must be returned to the court from which it issued ; and although it issue from a court of one county and is levied in another, the original writ must be returned to the court from which it issued.^ § 226. The return becomes matter of record, and can not, in general, be contradicted. — The return becomes a matter of record and can not be contradicted by extrinsic evidence upon an allegation which merely avers its falsity.^ It is a general rule that neither the parties to the writ, nor their privies, can falsify the record thereof, except in a direct proceeding to va- cate or annul it, and that the return of the officer, as to all the facts which the officer has authority to certify, becomes a part of the record and can not be collaterally attacked by them, for the purpose of invalidating the sheriff's proceedings, or defeat- ing any rights acquired under them. But it is not conclusive as to third persons whose interests are not connected with the suit, and whose interests may be affected by the proceedings of the sheriff ; nor is it conclusive as to collateral facts or matters not necessary to be returned.^ Proof of service is made by the 1. In Texas, however, the officer copy of the attachment writ, etc., at who makes the levy should return the the defendant's place of abode, it may claim-bond and a copy of the writ to be contradicted. Buckingham v. Os- the court of the county in which the borne, 44 Conn. 133. latter was made, having the jurisdic- Where, in fact, personal property is tion to adjudicate the claim. Still v. for the first time seized and taken into Focke, 66 Tex. 715, 2 S. W. Eep. 59. custody of the officer under a writ of 2. King V. Bucks, 11 Ala. 217. execution and he return that he has A plea in abatement merely deny- levied the same upon certain property ing the defendant's right to the prop- subject to a former attachment, it erty levied on is bad on demurrer, will not preclude the execution- King V. Bucks, 11 Ala. 217. Denying creditor from showing that, from an the ownership of property attached is omission of the officer to take the not good matter for a plea in abate- property into his custody, no such at- ment of the attachment suit. Sims v. tachment had in fact been made. Jacobson, 51 Ala. 186. Root v. Columbus, H. V. & T. R. Co., 3. Browne. Davis, 9 N. H. 76; Chap- 45 Ohio 222, 12 N. E. Rep. 812. line V. Robertson, 44 Ark. 202 ; Hut- A judgment in attachment can not, ton V. Campbell, 10 Lea (Tenn.) 170. however, be avoided by the testimony If an officer return that he left a of the person upon whom the writ Att. 29 450 RETURN OF THE WRIT. § 226 sheriff's return ; and service can not be proved as a matter in pais, nor aided by presumption/ unless the language in the re- turn is so clear as to sufficiently disclose to the court that a proper attachment has been made.^ The return of the officer must show what property has been attached. Parol evidence can not be admitted for that purpose, but if there has been a mistake in the return, the officer has a right to show the real facts on a proper proceeding for amendment.' And it seems that parol evidence may be admitted to explain an already suf- ficient return, in a matter on which it is not wholly silent. For where the return stated * ' six head of cattle branded with different brands," parol evidence was admitted to identify the cattle seized with those claimed.* And if it become necessary to determine the exact time at which the levy was made, and the hour is not stated in the return, it may be proved by other evidence.* The return is conclusive against the officer making it. He will not be allowed to contradict it or disprove it by parol evidence.® Although the return of the sheriff, *' no property of the de- was served, as the person in posses- 5. Garity v. Gigie, 130 Mass. 184. sion, that he never had possession of Several writs were served, on the the property attached because such same day, on the same goods. All testimony would be in contradiction the returns except one stated the to the return. Kramer w. Wellendorff, time of day the service was made. (Pa.) 10 Atl. Rep. 892. The court said that it was neither a 1. Woolridge v. Monteuse, 27 La. legal construction nor a presumption Ann. 79. that such writ was served at the same 2. See "Presumption Favoring the time any of the others were; but that Return," post, § 237. parol evidence was admissible to show 3. Sanford v. Pond, 37 Conn. 588; at what time in the day mentioned in see "Amendment of Return," post, the return the service was made. §238. Brainard v. Bushnell, 11 Conn. 16. But in an action on an attachment 6. French v. Stanley, 21 Me. 512; bond for wrongful attachment the Haynes v. Small, 22 Me. 14 ; Clark v. plaintiff may show what property of Gray, 11 Ala. 98 ; Chadbourne v. his was seized and delivered to the Sumner, 16N. H. 129; Brown u. Davis, attaching creditor and by whom it was 9 N. H. 76 ; Ryan Drug Co. v. Peacock, converted, even though the sheriff's 40 Minn. 470; Planters' Bank v. return be silent as to such property. Walker, 3 Smedes & M. (Miss.) 409; Hensley v. Rose, 76 Ala. 373. Harvey v. Foster, 64 Cal. 296. See 4. SilverBow M.&M.Co.iJ. Lowry, Denton v. Livingston, 9 Johns. (N. 6 Montana, 618. Y.) 96. § 227 EVIDENCE IN SUIT BY OR AGAINST OFFICER. 451 fendant found in my county," if actually returned to the clerk, might bind the sheriff's successor, yet if the writ has not been returned to the clerk, such indorsement by the sheriff upon the writ will not preclude his successor to whom the writ is delivered from levying the attachment upon the property of the defendant, nor render his acts irregular.'' § 227. Return evidence in suit by or against officer making it. — In any action in which the officer is a party ( either plaint- iff or defendant), his return must be taken as prima facie evi- dence. It is a universal rule that the return of a sworn officer, acting within the sphere of his official duty, is always compe- tent evidence and will be presumed to be correct until its falsity is shown." The sheriff's return is, however, evidence of only such acts as he may lawfully do, under and by virtue of the writ." 1. Courtney v. Carr, 6 Iowa 238. 2. Bruce V. Holden, 21 Pick. (Mass.) 187; Hensley v. Rose, 76 Ala. 373; Palmer v. Thayer, 28 Conn. 237; Nichols V. Patten, 18 Me. 231; Water- house V. Smith, 22 Me. 337. The return of the officer, which states that he has duly made to the register of deeds the certificate re- quired by law, is only jmma facie evi- dence of that fact stated in such cer- tificate, and the return may be con- tradicted and controlled by the pro- duction of the certificate itself. Button V. Simmons, 65 Me. 583. The certificate of appraisers of prop- erty attached, indorsed on the back of the writ, and adopted by the officer as part of his return, together with the return, is competent evidence of the disposition of the property. Ken- nedy V. Pick, 43 Me. 423. In Maine, when an officer sets up an attachment of personal property in defense to an action of replevin brought against him for the property, the return will be sufficient evidence that the property had been in his pos- session, in the absence of proof to the contrary. Smith v. Smith, 24 Me. 555. Where an officer has been ordered to attach property to a certain amount, a return that he has attached all the hay, grain, etc., in the defendant's barn, the writ and return will be prima facie evidence that the property attached was worth that amount. Barney v. Weeks, 4 Vt. 146. In Maine, also, when the return fails to state the value of the goods attached, it will be presumed, in the absence of all other testimony, that the property was of the value com- manded to be attached. Childs v. Ham, 23 Me. 74. The return is evidence in the offi- cer's favor even in an action of tres- pass de bonis asportatis, brought by him against a stranger to the suit in which the attachment was made. Angierv. Ash, 26 N. H. 99. 3. Charles City P. and M. Co. v, Jones, 71 Iowa 234. 452 RETURN OF THE WRIT. § 227 When a sheriff undertakes to justify his doings under the writ, after the time appointed for its return, he must either aver that he has returned it, or show some legal excuse why he has not returned it.' The return of the officer is in some cases not only prima facie evidence, but conclusive proof for or against him. In Min- nesota a sheriff's return to a writ of attachment is conclusive on him and his legal representatives when sued by the attach- ing creditors.^ In New Hampshire it is conclusive evidence of the attachment, as against the debtor and those claiming under him by a subsequent purchase with notice,' and as be- tween the officer and a trespasser.* And where the return is sufficient to constitute a valid attachment of personal property, it is, in the absence of fraud, conclusive of the fact of the at- tachment.® And in Texas, in an action for wrongful attach- ment, it is conclusive evidence as to what property was at- tached.® In Vermont the return of an officer, that he has at- tached property precludes him from showing that there was no property there.' And in Massachusetts, the return describing the premises attached is conclusive evidence of such attach- ment.^ And the written return of the officer, on a writ, is com- petent to prove the attachment of the property, though the writ may never have been returned to the court to which it was re- turnable.® In Pennsylvania a return stating that the writ had been served uj)on an agent of the defendant corporation, which neither set forth the agent's special character nor place of busi- ness, was not conclusive that such person was the *' agent " intended by the statute, as one upon whom process of attach- ment may be served." But although the return may be considered as conclusive 1. Kirksey v. Duboise, 19 Ala. 43. 7. Barney v. Weeks, 4 Vt. 146. 2. State V. Penner, 27 Minn. 269. 8. Sykes v. Keating, 118 Mass. 517. 3. Morse v. Smith, 47 N. H. 474, See further "Description of the Prop- 4. Brown v. Davis, 9 N. H. 76. erty," post, § 231. 5. Lathrop v. Blake, 23 N. H. (3 9. Wilder v. Holden, 24 Pick. Fost.) 46. (Mass.) 8. 6. Schneider v. Ferguson, 77 Tex. 10. Liblong v. Kansas Fire Ins. Co., 572, 14 S. W. Rep. 154. 82 Pa. St. 413. § 228 WHEN RETURN SHOULD BE MADE. 453 proof against the officer making it, yet when a fact is therein stated, which from the nature of the case must be mere matter of opinion, parol evidence is admissible to explain it.^ The r return is not conclusive as to circumstances attending the serv- ice of a writ.* ^ Furthermore when the return states matters foreign to what has been done in the lawful execution of the writ, the return is not even admissible evidence of those matters ; it is evidence only of what the law requires the officer to show." When two officers have made successive levies on the same chattel, the return of each is prima facie evidence of the levy made by him, and parol evidence is admissible to show which was the prior one. And when it is shown by other evidence that the officer making the first attachment was not in posses- sion of the chattel at the time of the second attachment, the second one will prevail.* § 228. When retui'ii should be made.— After all other acts, necessary to complete a levy, have been performed, and an in- dorsement of the officer's doings has been made upon the writ, it should be returned to the court from- which it issued. No precise rule can be stated regarding the time when this should be done. However, it should be made during the lifetime of the writ, for if it is made after the writ has expired it may be void, and if the date of the writ is later than the officer's re- turn, such return is premature and in consequence thereof is void.^ The officer may return the attachment at any time 1. Williams '».Cheesebrough,4 Conn, of sale of the property is void, and 356, will be no defense to an action for 2. Pomroy v. Parmlee, 9 Iowa 140. taking and converting the goods sold 3. Charles City P. and M. Co. v. thereunder. Brown v. Carroll, 16 R. Jones, 71 Iowa 234. I. 604, 18 Atl. Rep. 283. 4. Bruce 1'. Holden,21 Pick. (Mass.) The contrary is held in Texas. 187. Willis V. Mooring, 63 Tex. 340. 5. Berry v. Spear, 13 Me. 187; Craig In Michigan, if the return be nat V. Williams, (Ya.) 18 S. E. Rep. 899. made till the day following the return In Rhode Island, if it appears from day, that fact alone will not destroy the record that jurisdiction in an at- the lien created by the attachment, tachment suit has been lost by a fail- Horton v. Monroe, 98 Mich. 195, 57 N. are to return the writ in time, an order W. Rep. 109. 454 RETURN OF THE WRIT. § 228 during the sitting of the court on the return da^^ unless specially directed by the court to return it immediately.^ But in some states if the return day has expired, no return can be legally made."^ While in others a delay of many months will not forfeit the lien created by a proper levy, when the rights of other creditors have not intervened." But where the creditor's attorneys have used due diligence to procure the return, the lien was not forfeited by laches.* It has been further said, that where all the formalities have been complied with, the attachment creates a lien, though it be not returned and filed until after the entry of judgment.® Again it is said, that where the levy has been made and the officer has omitted to make his return, the return may be made 7iunc pro tunc, and thereupon the rights of the attaching creditor will be the same as if it had been made at the proper time.® In North Carolina it is said that an attachment, like a warrant, need not contain any special day of return, and that it is sufficient if returnable within thirty days from its date.' And in Wisconsin and In- diana it need not be returned at any particular time ; it 1. People V. Wheeler, 7 Paige (N. the attachment shall be a lien thereon Y.) 433. from the time that a certified copy of In Wisconsin a return was pre- the same, with a description of the sumed to have been made on the re- real property seized, is delivered to turn day, when neither the date of the the register of deeds for record, return on the writ nor any entry of Cousins v. Alworth, 44 Minn. 605, 47 record showed that it was made at a N, W. Rep. 169. different time. Slaughter v. Bevans, In an ancillary attachment, where 1 Pinney (Wis.) 348, the sheriff had omitted to make a 2. Williams v. Babbitt, 14 Gray return until after judgment Avas ob- (Mass.) 141; Russ v. Butterfleld, 6 tained, it was not permitted to affect Cush. (Mass.) 242. the lien of the attachment-plaintiff 3. City Nat. Bank v. Cupp, 59 Tex. who was not privy and did not con- 268. sent to such omission of the sheriff, 4. Riordan v. Britton, 69 Tex. 198, but more leniency is allowed in ancil- 7 S. W. Rep. 50. lary than in original attachments. 5. Cousins v. Alworth, 44 Minn. 505, Reed v. Perkins, 14 Ala. 231. 47 N. W. Rep. 169. 6. Bancroft v. Sinclair, 12 Rich. L. This was under a statute providing (S. C.) 617. that where, in an action against a non- 7. Hiatt v. Simpson, 13 Ired. (N. C.) resident, his real property is attached, L. 72. § 228 WHEN RETURN SHOULD BE MADE. 455 may be retained till executed, or until by reasonable diligence it might be executed.* It is not necessary to the validity of the attachment, that the officer should certify to his actions under the writ by making his indorsement upon it, previous to the return day.' But m Kentucky, at least, the indorsement of the levy on land after the return day thereof, as shown on the face of it, is void." When the goods levied upon are replevied from the officer, he has the right to retain the writ until such goods are returned to him, in order that he may then proceed with the execution of it.* When the return refers to the month, without designating any year, it will be understood to intend the current year.' And if the day of the month and the day of the week, mentioned in the writ as the return day, do not correspond, the day of the to have the process made returnable to the next following term, or to any- succeeding term, to be holden within three months, and if it is made return- able to the first term, the cause will be continued. Mechanics' Sav. Inst. v. Givens, 82 111. 157. In Florida a writ of attachment, issuing from a court of competent ju- risdiction and returnable on the day of its issuance, or to the next term of the court instead of the next rule day, as required by statute, is not void. The officer to whom it is directed may execute it with due haste. Post v. Bird, 28 Fla. 1, 9 So. Rep. 888. In Texas a direction for the return of a second writ of attachment instan- ter, is not ground for quashing it, for the statute provides that the writ shall be returned on or before the first day of the next term of the court. Pan- handle Nat. Bank v. Still, 84 Tex. 339, 19 S. W. Rep. 479. 4. Levi V. Darling, 28 Ind. 497, Same principle in Louisiana, Matter of Hall, 21 La. Ann. 692. 5. Kelly v. Oilman, 29 N. H. 385. 1. Chase v. Hill, 13 Wis. 222; Will V. Whitney, 15 Ind. 194. 2. Wilder v. Holden, 24 Pick. (Mass.) 8. 3. Peters v. Conway, 4 Bush (Ky.) 565. See "Amendment of the Return," post, § 238. In Connecticut when a lien was pre- served on real estate by recording the proceedings in the town clerk's office within four months, it was not neces- sary that it should be returned into the office of the clerk of the court within that period. If it was returned within a reasonable time afterwards, it was sufficient ; and a return on the next day after the expiration of such period was within a reasonable time. Spencer v. Champion, 13 Conn. 11. In loiva the direction in a writ that it shall be returned by the first day of the next term, is surplusage, the writ will be valid although it is omitted. Westphal v. Sherwood, 69 Iowa 364. In lUinois, where ten days do not intervene between commencing a suit and the first day of the next term of the court, the plaintiff has his election 456 KETURN OF THE WRIT. §229 month will control/ But where the officer's return was dated October 5, and the certified copy thereof, returned to the regis- ter of deeds, showed the date to be October 18, of the same year, no lien was created by the attachment.^ §229. Formal parts of the return — (a) Must state what acts were done. — The officer must, by the statement on his re- turn, inform the court what his proceedings under the writ were, and how they were conducted. Then the court will be able to judge whether the writ has been '* executed " and " served " as required by the statute.' 1. State Sav. Bank v. Hosmer, 95 Mich. 100, 54 N. W. Rep. 632. 2. Bessey v. Vose, 73 Me. 217. 3. Rankin v. Dulaney, 43 Miss. 197 ; Ezelle V. Simpson, 42 Miss. 515; Jeffe- ries V. Harvie, 38 Miss. 97; Crizer v. Gorren, 41 Miss. 563 ; Haynes v. Small, 22 Me. 14. In Mississippi, an indorsement by the officer that he had "executed, by serving the within attachment person- ally, on" the defendants "and levying on," etc., is not "full return of his proceedings thereon," as required by the statute. Rankin v. Dulaney,. 43 Miss. 197, overruling Redus v. Wof- ford, 12 Miss. (4 Smedes & M.) 579. In Neio Jersey, a return by the officer that he has served the writ according to law is not sufficient. It should state the way in which he executed it so that the court can judge that the service is according to law. Crisman V. Swisher, 28 N. J. L. 149. In Louisiana, a statement that he has seized according to law, is not suf- ficient to show that he has attached according to law. He must state the manner in which the writ has been executed. Page v. Generes, 6 La. Ann. 549; Stockton.?;. Downey, 6 La. Ann. 581 ; Kilbourne v. Frellsen, 22 La. Ann. 207. In Tennessee, under a statute re- quiring a return to state that the de- fendant is "not found in the county," it was held that the statute implied a diligent search, and that the defend- ant was not to be found by reason of absence or concealment, before a ju- dicial attachment against his estate could be issued, and that a return stating "the defendant not found in my county" was not a compliance with such statute. Welch v. Robinson, 10 Humph. (Tenn.)264. In Texas, as to the return on an original citation before a judicial at- tachment can be sued out, see Walker V. Birdwell, 21 Tex. 92. In Iowa, under a section of the code requiring the return to state the facts constituting the service of the writ, a statement that it was "duly served" is insufficient. Benjamin v. Shea, 83 Iowa 392, 49 N. W. Rep. 989. In California, a return that the officer duly levied the writ is defect- ive in not stating what acts were done by the officer in making the service, but such a return is prima facie suf- ficient to show an execution of it, though such presumption may be con- tradicted. Porter v. Pico, 55 Cal. 165. § 229 FORMAL PARTS OP THE RETURN. 457 However, under a statute requiring that the officer serving a writ of attachment shall return the same " with a certificate of his proceedings indorsed thereon or attached thereto," the officer's return asserted that he attached certain property, but it failed to set out the performance of all the necessary acts, and parol evi- dence was admitted to prove their performance ; but no evi- dence was admitted which was not clear and positive.* On the other hand, it was held to be the duty of the sheriff, when re- turning an attachment of real property, to indorse thereon what acts he performed in serving the writ ; and that it would be presumed that he stated all that he did toward making the service.^ In another state it has been said that a sheriff's re- turn must show an exact compliance with the law under which he makes the service.^ And also, that the return need not set forth the fact of actual manual seizure of the goods attached, for the presumption is that the writ was lawfully issued.* The general rule may therefore be said to be, that while the officer is required to make a full, true and minute return of his doings,* no such precision is required in the indorsement of the service of the writ as is required in a sheriff's return upon an execution.^ Technical accuracy of the sheriff's return is not essential to the jurisdiction of the court over the land at- tached ; nor is it essential to the validity of the levy and at- tachment proceedings.' If the return is certain on its face, and conforms substantially to the requirements of the statute, it is sufficient.* If the return shows a substantial service of it, al- though it does not show a compliance with all the particulars 1. Brusie v. Gates, 80 Cal. 462, 22 the property attached was the prop- Pac. Rep. 284. erty of the defendant. Eowan v. 2. Sharp v. Baird, 43 Cal. 577. Lamb, 4 Greene (Iowa) 468. 3. Gilbough U.Keller, 11 Phila. (Pa.) S.Saunders v. Columbus Life Ins. 364. Co., 43 Miss. 583. 4. Prather v. Chase, 3 Brews. (Pa.) The court will not intend facts in- 206. See as to "Presumption Favor- consistent with the return tending to ing the Return," j9os«, §237. make it void. Strict compliance to 5. Haynes v. Small, 22 Me. 14. the language of the statutes is not re- 6. White V. O'Bannon, 86 Ky. 93. quired. A substantial compliance is 7. Rowan v. Lamb, 4 Greene (Iowa) sufficient. Saunders v. Columbus Life 468. Ins. Co., 43 Miss. 583. , In this case it was presumed that 458 RETURN OF THE WRIT. § 229 mentioned in the statute as to the mode of service, it is suf- ficient.' But the statute requiring the filing of an "attested copy " of the writ, the return to be indorsed on the writ must show that such copy was in fact filed. ^ And the same is true in regard to the posting of notices and leaving of copies with occupants in case a levy has been made upon real estate.^ And 1. Thompson v. Eastburn, 16 N. J. L. (1 Harr.) 100. 2. Carleton v. Ryerson, 59 Me. 438. 3. In Michigan, a return that the writ ■was not served must show that a copy has been left at defendant's last place of residence in the county, or that there was no such last place of resi- dence. Adams v. Abram, 38 Mich. 302. And a return which shows only a service, on the date of the writ, upon the persons in whose possession the officer found the property, with the mere recital "the defendant not having any last place of residence within the county," being silent as to whether the defendant was or could not be found, and as to any attempt to find him, gives no jurisdiction to try the cause or to render judgment, if the defendant fails to appear. Nicolls V. Lawrence, 30 Mich. 395. Likewise, a return reciting that the officer has "personally attempted to serve it on the defendant by reading the same and offering a copy to him at the house of A, but he ran away. I could not deliver a copy to him," is not a return of personal service. Holden v. Ranney, 45 Mich. 399. In Oregon, under a section of the code providing that "real property shall be attached by leaving with the occupant thereof, or, if there be no occupant, in a conspicuous place thereon, a copy of the writ," a return failing to show that the defendant was an occupant of the land and fail- ing to show that the front door on which a writ was said to be posted was a conspicuous place, and failing to allege that the land had no occu- pant, is not sufficient. Hall v. Steven- son, 19 Ore. 153, 23 Pac. Rep. 887. In New York, prior to the code, a return to an attachment stating merely that the levy had been made on cer- tain enumerated goods was erroneous, because it should have further stated that a copy of the attachment had been left at the dwelling-house or other last place of the debtor's abode. Willard v. Sperry, 16 Johns. (N. Y.) 121. In Vermont, a return stating that the officer left a copy of the writ at the last and usual place of abode of the defendant, without stating in what situation such copy was left, is a de- fective service and the suit may be abated, but the lien created by the levy is nevertheless valid as against subsequent creditors and trespassers. Newton v. Adams, 4 Vt. 437. But a statement that he advertised the sale to be in a certain place will be con- sidered to mean that the advertise- ment was also set up at that place, and such return will therefore be sufficient. Collins v. Perkins, 31 Vt. 624. In Missouri, a return on an order of publication, issued in an attachment proceeding, which does not show that the notice was posted at a place and for the time required by the statute, will not be sufficient to give the court jurisdiction. McCloon v. Beattie, 46 Mo. 391. In Massachusetts a return showing §229 FORMAL PARTS OF THE RETURN. 459 the return of an officer that he has made an attachment of property, is said to be equivalent to a return of all the facts, and acts done which are required to constitute a valid attach- ment of personal property ; and that, in the absence of fraud, is sufficient and conclusive of the fact of the attachment.* In cases of ancillary attachment, where no jurisdiction of the clerk. an attachment of property and service of a summons on the defendant by leaving it "at his last and usual place of abode known to me as such in said Boston," is sufficient to support a judgment. Jones v. Walker, 15 Gray (Mass.) 353. In Pennsylvania a statute requires the sheriff to attach houses and lands "by leaving a copy of the writ with the tenant or other person in actual possession holding under the defend- ant in attachment;" therefore a re- turn of attachment issued under such statute against the real estate stating that the officer "had served the writ on T, garnishee, and as to the defend- ant nihil " was held to be insufficient to warrant a judgment for the plaint- iff, because it did not show that T held under the defendant. Bryan v. Trout, 90 Pa. St. 492. In Maryland a return to a writ of attachment issued on a judgment, that the officer had attached the un- divided half in certain tracts of lands, specifying them by name, "but found no person in possession thereof, the same being wild and unimproved lands," was deemed to contain the usual clause of scire facias and the statements were according to the facts. Manton v. Hoyt, 43 Md. 254. In New Hampshire if a return show that the officer did all that the statute required to make a good attachment of real estate, it need not state that the attachment was made by leaving a copy of the writ and return at the dwelling-house of the town Kelley v. Barker, 63 N. H. 70. In Mississippi the return of an at- tachment of land occupied by the defendant as a residence, which re- cites that it was levied on the land and describes it by metes and bounds, stating that a true copy of the process was delivered to defendant, is not sufficient; because it is required that in such case the officer shall go to the house of defendant, and there declare that he attaches the land ; and shall make a full return of his proceedings. People's Bank v. West, 67 Miss. 729, 7 So. Rep. 513. In Maine the return must show that the debtor was duly notified to choose an appraiser. Means v. Osgood, 7 Greenl. (Me.) 146. And unless it shows by whom the appraisers were chosen, no title shall pass to the land at a sale under such attachment. Ban- ister V. Higginson, 15 Me. 73. 1. Lathrop v. Blake, 23 N. H. (3 Post.) 46. In Mississipin the return of an at- tachment upon personal property which does not show what disposition has been made thereof is defective. Tucker v. Byars, 46 Miss. 549. In Connecticnt a return to an attach- ment of machinerj^ in a building which shows that the officer took ex- clusive possession of it and placed a keeper over it, though it fails to state why the property was not removed from the building, is not defective. Morey v. Hoyt, 62 Conn. 542, 26 Atl. Rep. 127. 460 RETURN OF THE WRIT. §§ 230, 231 person is dependent upon the service of the attachment, the court will indulge presumptions in support of the attachment which are not admissible in favor of original attachment, for in original attachment cases the jurisdiction is dependent upon the levy.^ § 230. (b) Must state when the acts constituting the serv- ice were performed. — The return must show the date of the service. The return of a levy of attachment on personalty is insufficient if it fails to show the date of the levy.^ This must be done in order that it appear of record that the officer made the levy during the time he had authority so to do. For if it is made either before the writ issues or after it expires, no lien is created thereby, and the officer is liable as a trespasser.^ It has, however, been presumed in New York, in a case where a levy and personal service had been made, that the personal service was made within the time required ; the court stating that it might reasonably be presumed that the service was made on the day the property was attached.* A return of an officer, stating that he had made an attachment at twelve o'clock at noon, on a certain day, will be deemed to be prior to an attachment in which the return is stated to have been made on the same day, and does not state any particular time of the day.^ § 231. (c) Must contain description of the property at- tached and its location — Schedule or inventory. — It is of great importance that the return of the ofiicer upon the writ should 1. Stoddard v. McMahon, 35 Tex, 2. Newton v. Strang, 48 Mo. App. 267, overruling Meuley v. Zeigler, 23 538. Tex. 88, and contra to Tiffany v. 3. See ante, § 205, " When the Of- Glover, 3 G. Greene (Iowa) 387, in so ficerto Make the Levy." far as they ignore this distinction. When the return showed a date six The omission, until after judgment, days prior to the date of the issuing of to return an ancillary attachment, the writ, the levy.was insufficient. Wil- which was duly levied did not affect son v. Strieker, 66 Ga. 575. the lien of the attachment plaintiff, 4. Talcott v. Rosenberg, 8 Abb. (N. who was not privy to and did not con- Y.) Pr. N. S. 287. sent to the delay of the sheriff. Reed 5. Fairfield v. Paine, 23 Me. 498. V. Perkins, 14 Ala. 231. § 231 DESCKIPTION OF THE PROPERTY ATTACHED. 461 describe the goods levied upon with such a o uncertamty in here after ider^titying them.' But a neglect rn this -S«^ w^l on^^^^^ subject the officer to nominal damages unless ,t - *-» «-^ spedal damages have been occasioned thereby. And where a levy itself has been properly made, an ^^^•^^'-^^''yr'Xt in this regard will not invalidate the attachment. Wheie, however the statute provides how the return shall be made, as it often does, in regard to the attachment of lands, no ben w U be created upon the land^unless the return complies with such provisions of the statute. An inventory of the property seized is required by some statutes as one of the steps necessary to a complete service and efurn of the writ, in which cases there can be no lien acquired without such an inventory; but in other states where it is no a necessary proceeding, yet if the property levied on consi ts o 60 many different articles that a memorandum of them can no be rnv'eniently indorsed upon the writ, then the officer should make an inventory and file it with the process ; and this in- ventory should so describe the articles that they may be identi- 1 Baxter,. Rice. 21 Pick. (Mass.) material defect. Pond ,. Baker, 85 197 ; Brace ,. Pettengill. 12 N. H. 341 Vt^400. ^^^^^^^ i^X:-:^^^^^^^' viraVafMftheJdelendantcannot Intwrcletlie office had attached be found within the conn y, the offl- 17 ^ ^ ^^ ^^ ^ the process shall leave with the de- 464 RETURN OF THE WRIT. § 231 defendant was not sufficient.^ But where the only sheep on a defendant's farm were in a barn in charge of a tenant on the part of the farm which he had leased, a description in the return that they were on the defendant's farm was sufficient.^ But a description was not sufficient, which recited that the property was situated "in defendant's cellar," when it was in the cellar of the house on the farm in which a tenant on shares lived, situated a mile from the house in which the defendant lived." Where, however, a return set forth various articles in succession, continuing: ''one wagon, one organ, 40 bobbin logs on defendant's farm," it was held that the words "on defendant's farm" referred to all the property and not to the logs only, although there was no comma after the word "logs."* A return that animals have been attached, which does not describe them or show that they were located on any farm or any other place, nor even in the jurisdiction where the service was made, is wholly ineffectual to create a lien.® The location of the property attached, stated with such reason- able certainty as to make it susceptible of identification, is all that is required. An attachment against the Columbia National Bank, at Washington City, returned with the indorsement "at- tached credits in the hands of the Columbia National Bank," etc., was held to be sufficient without the addition of the words "of Washington City, "and it was said they were immaterial.® The return must, however, show that the property was attached within the officer's county. If the attachment is on real estate the description will usually show the name of the county and state, but if it be personal property the county is apt to be omitted unless particular care is paid to the return in this re- 1. Rogers v. Fairfield, 36 Vt. 641. 5. Keniston v. Stevens, 66 Vt. 351, Nor was a recital of the attachment 29 Atl. Rep. 312. of " all the coal in the town of B." What is a sufficient return of a Paul V. Burton, 32 Vt. 148. seizure of cattle wherever found, see 2. Barron v. Smith, 63 Vt. 121, 21 Davis v. Dallas Nat. Bank, — Tex. Atl. Rep. 269. Civ. App. — , 26 S. W. Rep. 222. 3. Barron v. Smith, 63 Vt. 121, 21 6. Reynolds v. Smith, 7 Mackey Atl. Rep. 269. (D. C.) 27. 4. Barron v. Smith, 63 Vt. 121, 21 Atl. Rep. 269. § 231 DESCRIPTION OF THE PROPERTY ATTACHED. 465 gard. If, however, this be not shown by direct recital, and be shown indirectly, it will be sufficient. As where the officer recited that he had attached certain property, and then stated that the same was all he could find in his bailiwick, it was held sufficient to show that the writ was executed within the county.' Land should be described in the return of an attachment with such certainty as would be sufficient in a deed of convey- ance, otherwise the attachment will be void.^ It has been said that the return will be defective if it fails to describe the land with such certainty that by its own terms the land may be identified without resorting to parol evidence;^ the words "levied upon land," etc., being insufficient.* But it has also been said that if certainty can be shown from other facts, the defect may be thereby cured. Where an attachment was laid on a part of a certain tract, without designating the part, the defect being such as would, in itself, have invalidated the levy, it was rendered sufficient by proof that the defendant in attachment had previously conveyed all of the tract except the number of acres upon which the attachment was laid." And an attachment of all of the defendant's interest "in a cer- tain parcel of land on P street, Boston," was certain enough; parol evidence being admitted to show that the defendant was interested in only the one piece on that street. But it was said that if he was interested in more than one piece, parol evidence could not be admitted to show which was attached.® A return of attachment describing the property "as the property of the defendants, all right, title and interest that they may have to a grist mill standing in the town of , " will be sufficient 1. Marnine v. Murphy, 8 Ind. 272. 440; Henry v. Mitchell, 32 Mo. 512; In Michigan, where a constable's Howard v. Daniels, 2 N. H. 137. return to a justice's attachment was 3. Meuley v. Zeigler, 23 Tex. 88. silent as to the place of seizure, it 4. Meuley v. Zeigler, 23 Tex. 88. was presumed to have been as directed 5. Biggs v. Blue, 5 McLean (U. S.) by the statute, "within the county." 148. Bushey v. Raths, 45 Mich. 181. 6. Whitaker v. Simner, 9 Pick. 2. Biggs V. Blue, 5 McLean, (U.S.) (Mass.) 308. 148; Clark v. Ward, 12 Gratt. (Va.) Att. 30 466 RETURN OF THE WRIT. § 231 if it appears that the defendants had an interest in one grist mill in that town. But it is not sufficient if it appears that they also had an interest in some other grist mill in the same town.* A return of the officer that he has ''attached all the right and interest of the debtor in any land in the town of E" is a valid attachment of any land coming within this descrip- tion.^ An indorsement of the officer that he had "attached the homestead farm of the debtor containing about thirty acres, more or less," was good, although the farm contained 150 acres." And a return of the sheriff, that he had attached ''as the property of the defendant" the land described in the writ, is sufficient under the laws of Minnesota.* But a return of the officer, that he has attached the goods, etc., of the defendant, and reciting "his life estate in all the lands got by his wife, supposed to be 450 acres," is too uncertain.^ A description sufficient to distinguish and identify the land is all that is necessary; although the statute may contain specific directions, they need not, of necessity, be followed. But it is safe for the officer to follow such directions carefully and minutely.® 1. Lambard v. Pike, 33 Me. 141. 6. Smith v. Low, 2 Ired. L (N. C.) 2. Taylor v. Mixter,ll Pick. (Mass.) 457. 341 ; Moore v. Kidder, 55 N. H. 488. Where, on its face, a writ of attach- And it makes no difference that at ment embraced nothing but the de- the time of the attachment the de- fendant's interest, or his distributive fendant had conveyed away all his share in the personal assets in an ad- land in the town if the deed thereof miuistrator's hands ; and where the has not been recorded. Moore v. return showed no attachment of lands Kidder 55 N. PI. 488. or interest therein,and it was admitted And a general attachment of all the on the trial that the administrator interest of the debtor in any real es- Avas. not in possession of the land, no tate in the county will hold the land lien was created on defendant's inter- fraudulently conveyed by the debtor est in the real estate of the decedent, by a deed which has been duly re- Roth's Appeal, 94 Pa. St. 186. corded. Pratt v. Wheeler, 6 Gray Where a sheriff, intending to attach (Mass.) 520. land in township 67, stated in his re- 3. Bacon v. Leonard,4 Pick. (Mass.) turn that he had attached land in 277. township 68, but entered on the in- 4. Cousins v. Alworth, 47 N. W. cumbrance book an attachment of Rep. 169, 44 Minn. 505. land in township 67, it was held that 5. Fitzhugh V. Hellen, 3 Har. & J. this entry was not constructive notice (Md.) 206. of an attachment in township 67. Col- lier V. French, 64 Iowa 577. §§ 232, 233 SAME, SECOND ATTACHMENT. 467 § 232. (d) Same, second attachment. — The second writ of attachment can only be served by the officer who has levied the first. And as to the description to be given in the return on the second, it is said, in California, that when an ofiicer has property in his possession, under one attachment, and he at- taches it under a second writ, it will be sufiicient, if he make return, that he has attached the right, title and interest of the defendant in the property, the same being in his possession.* And in Nebraska, different attachments of the same property may be made by the same ofiicer, and he need make but one inventory and appraisement, and it may be returned with one writ only. Tlierefore an officer, in making an attach- ment, may levy it on a part of a stock of goods, and, if before making the inventory and appraisement other orders of attach- ment are placed in his hands for execution, he may levy upon property of sufficient value to satisfy all and make but one re- turn of the inventory and appraisement.^ Property having been attached by one officer and taken into his custody is in custody of law, and, if another officer, who holds a writ of attachment against the owner of the property, make return that he has attached the same property, subject to the first attachment, still leaving the property in the possession of the first attaching ofiicer, it will create no lien on the prop- erty." § 233. (e) Statement of the value of the property seized. — Unless it is a particular requirement of the controlling statute it is no part of the officer's duty to fix a valuation upon the property he attaches.* And while his statement of the value of the property is prima facie evidence of a fair valuation, and the burden rests upon him to establish the contrary,^ yet his return fixing a value to the goods levied upon will not be con- 1. O'Connor v. Blake, 29 Cal. 312. 4. Pierce v. Strickland, 2 Story 292; 2. Connelly v. Edgerton, 22 Neb. 82, Friedenrich v. Moore, 24 Md. 295. As 34 N. W. Rep. 76. to "Appraisement and Inventory," 3. Burroughs v. Wright, 16 Vt. 619. see ante, § 231. As to le\^ing upon property in ens- 5. Pierce v. Strickland,swpm; French todia legis, see ante, § 46, and as to v. Stanley, 21 Me. 512. "successive levies," see ante, § 201. . 468 RETURN OF THE WRIT. § 234 elusive against him, but will be taken as matter of opinion only, and may be explained by parol evidence.' Furthermore, when no value is fixed in the return, it will be presumed that the property levied on is equal to the amount for which the attachment is made, as expressed in the writ.^ § 234. (f ) Should state that property attached is the prop- erty of the defendant.— There is little harmony among the authorities regarding the statement in the return of the fact that the property attached is the property of the defendant, and yet there is no important conflict of decisions on this subject. Where the statute expressly requires it, the officer must com- ply, or his return will be fatally defective.' And where it is omitted, the plaintiff can not properly proceed to judgment.* For a judgment entered in such case will be void, especially in proceedings against a non-resident.* "Where the statute does not require, in the return, as a pre- requisite of the court's obtaining jurisdiction of the property, a statement that the property seized is the property of the de- fendant, no such statement is absolutely necessary,® yet, as a I.Denton v. Livingston, 9 Johns. 5. Repine ??. McPherson, 2 Kan.340. (N. Y.) 96. An indorsement of the officer on 2. Childs V. Ham, 23 Me. 74; Bar- the writ that he had levied the same ney v. Weeks, 4 Vt. 146. on four horses (describing their color) Where an officer had been ordered "as the property of the defendant," to attach property to the amount is sufficient. Fleming v. Burge, 6 of $20, and he returned that he had Ala. 373. But a statement that he attached all the hay, grain, etc., in levied on "an ox-cart," without say- the defendant's barn, the writ and ing to whom the ox-cart belonged, is the return were taken as prima facie insufficient. Clay v. Neilson, 5 Ran- evidence that the property attached dolph (Va.) 596. was worth $20. Childs v. Ham, 23 And a return stating that the officer Me. 74; Barney t\ Weeks, 4 Vt. 146. levied the attachment "by seizing and As to return being evidence in a suit levying upon all the right, title and by or against the officer making it, interest of the defendant" in certain see ante, § 227, and as to the "contra- personal property is not sufficient, for diction of the return," see ante, § 226. it fails to show that defendant owned 3. Offterdinger v. Ford, 86 Va. 917, or had any attachable interest in the 12 S. E. Rep. 1 ; Anderson v. Scott, 2 property, or that the property itself Mo. 15. See Willis v. Mooring, 63 was actually seized. Newton v. Strang, Tex. 340. 48 Mo. App. 538. 4; Morris v. Trustees, 15 111. 266. 6. Willis v. Mooring, 63 Tex. 340. § 234 SHOULD STATE THAT PROPERTY IS DEFENDANT'S. 469 matter of good practice, it should be included in the return.^ Such a statement is not conclusive of the question of owner- ship, for that is still open to contest between the parties inter- ested in its assertion or denial. The statement is only conclus- ive of the fact that the property was seized as the property of the defendant named in the writ.^ The same contrariety of opinion is found in cases of attach- ment on land, regarding the necessity of stating in the return that it is the property of the defendant. As in cases of attach- ment of chattels so in the attachment of realty, where under the provisions of the statute such a recital is a jurisdictional prerequisite, the omission of it will invalidate the lien.^ It has been said in Mississippi that "in view of the great re- sponsibility of the sheriff, every reasonable intendment ought to be indulged in favor of the regularity of his acts," and where in the attachment of land, he omitted to state that it was the property of the defendant, such fact is presumed.* 1. An indorsement by the sheriff that he has levied on certain property by virtue of the writ is, in Alabama, an affirmation that it is the property of the defendant. Thornton v. Winter, 9 Ala. 613. And in this state when a sheriff returns that he has levied on certain property, it will be intended that the property levied on was that of the attachment-defendant. Bicker- staff V. Patterson, 8 Porter (Ala.) 245. In New York, also, a return stating that by virtue of an attachment against A B he had levied on cer- tain property, the court construed the rettirn as intending to be a return that he had levied on the property of the defendant, and held it to be suffi- cient. Johnson v. Moss, 20 Wend. (N. Y.) 145. In Iowa, where it was adjudged that a mortgagee who had foreclosed his mortgage on certain goods and had purchased the goods, was not en- titled to their possession, and other creditors of the mortgagor had levied upon the goods, while they w^ere in the mortgagee's possession, it was held that attachments were good, al- though the return of the sheriff showed that the goods were attached as the property of the mortgagee. Buck Reiner Co. v. McCoy, 85 Iowa 577, 52 N. W. Rep. 514. And further, the return of an attach- ment against three defendants that by virtue of the writ the officer had levied on certain slaves, and that the same were replevied by the bond of "the defendant" is sufficient to show that the slaves were the property of all the defendants. Kirksey v. Bates, 1 Ala. 303. 2. As to the "Contradiction of the Return," see ante, §226. 3. Robertson v. Hoge, 83 Ya. 124, 1 S. E. Rep. 667; Cousins v. Alworth, 44 Minn. 505, 47 N. W. Rep. 169. 4. Saunders v. Columbus Life In- surance Co., 43 Miss. 583. 470 EETURN OF THE WRIT. § 235 And the same idea seems to be entertained in Alabama* and Iowa." In Maine, a return stating that the land is "supposed" to belong to the debtor, is sufficient; the qualifying term ''supposed" being held not to impair the effect of the attach- ment where the land is in fact the property of the debtor.^ And a return in which but one of several defendants is named, is sufficient to hold the real estate of the defendant named, but not that of those not named.* And in Wisconsin, on a writ running against the land of A and B, late copartners, a levy of the officer on the land of A, and a return that he had seized the land as the property of B, was held to be a sufficient at- tachment of the interest of either, and no amendment thereof was necessary.® § 235. (g) Should be dated. — ^The return on a writ of at- tachment should be dated, but where the date of return as given is obscure, it will be considered in connection with the date of the writ.® And where it omits to state the year it will be understood to mean the current year when the writ is properly dated.' Where a justice, in his return to a writ of certiorari, to bring up for review the attachment proceedings before him, said that the officer's return of service of the attach- ment was not in fact made until the return day, it was held to be immaterial that the return of service was not dated, or that the justice has erroneously entered in his docket a minute that the writ was returned on a different day.* And further, in one 1. Where the sheriff's return the land was the property of the de- showed an attachment of certain land fendant, such fact will be presumed, in the possession of a person not a Rowan v. Lamb, 4 Greene (Iowa) 468, party to the suit it was presumed, in overruling Tiffany v. Glover, 3 G. order to sustain the proceeding, that Greene (Iowa) 387. they were the lands of the defendant 3. Banister v. Higginson, 15 Me. 73. and levied upon as such. Lucas v. 4. Lincoln v. Strickland, 51 Me. Goodwin, 6 Ala. 831. 321. 2. Technical accuracy of the return 5. Robertson v. Kinkhead, 26 Wis. is not essential to the jurisdiction of 560. the court over land attached, nor is it 6. Millett v. Blake, 81 INIe. 531, 18 essential to the validity of the levy. Atl. Rep. 293. When the return is otherwise suffi- 7. Nash v. Mallory, 17 Mich. 232. cient, although it omit to state that 8. Nicolls v. Lawrence, 30 Mich. 395. § 236 SHOULD BE SIGNED. 471 case where the attachment and summons had been returned and judgment had been rendered, and where nothing appeared on the writ to show when it was returned or filed, it was held, in the absence of proof to the contrary, that it was the legal intendment that the writ had been returned before the judg- ment was rendered.* Where neither the date of the return of the writ or the entry of record shows specifically and positively that the return was made at a different time than the return day, it will be pre- sumed to have been made on that day.* § 236. (h) Should be signed. — In Illinois, a return of a levy not signed by the proper oflicer is said to be no levy.' And in Virginia, under a statute that prescribed that any officer to whom any process has been directed shall subscribe his name to his return, and where the service is by deputy he shall subscribe to the return his own name as well as that of his principal, a return to a writ served by a deputy, containing only his name and not that of his principal also, was quashed.* But in Tennessee it is said that a levy, otherwise sufficient, is good, although the return be not signed by the officer; and that it does create a priority over the subsequent attaching creditors whose attachments are more formal.* In Kansas the emission of the officer to sign his return, is a defect that may be cured by amendment; and yet if it is not so cured, the record 1. Anderson v. Graff, 41 Md. 601. 5. Lea v. Maxwell, 1 Head (Tenn.) 2. Slaughter v. Bevans, 1 Pinney, 365. (Wis.) 348; As to "Presumption Where an officer making sundry- Favoring the Return," see j3os^, §237. levies inadvertently omitted, until 3. Clymore v. Williams, 77 111. 618. after he had gone out of office, to 4. Mitchell v. Commonwealth (Va.) sign his name to the returns, which 17 S. E. Rep. 480. were true and regular in all other re- But in New York such return may spects, though the cause was still be signed by the deputy-sheriff and pending in court, it was held, that will be sufficient if the deputy-sheriff's this did not deprive the creditor of name is signed by his clerk, the his prior lien over subsequent attach- deputy having directed the clerk to ments. Lea v. Maxwell, 1 Head sign it. Gibson w. Park Nat. Bank, 98 (Tenn.) 365. N. Y. 87, 472 RETURN OF THE WRIT. § 237 fails to show a valid attachment, and the defect is one that can be taken advantage of in a collateral proceeding.* A return of attachment signed with the officer's name by his clerk is invalid and the attachment void in Connecticut, though delivered by the officer himself.^ But, in New York, it is sufficient when signed with the deputy sheriff's name by his clerk, the deputy having directed the clerk to sign it.^ In New Jersey, an attachment issuing from a court for the trial of small causes must be executed in the presence of a free- holder, who must sign the appraisement.* When the law re- quires witnesses to the levy, the names of the persons in whose presence an attachment was served must be returned by the sheriff.® § 237. Presumptions favoring the return.— Attachment be- ing a remedy that is not favored by the courts, it is a general rule that no presumption will be entertained in aid of it, but while the courts are far from uniform in presuming matters in aid of the officer's return, yet where the levy seems to have been otherwise sufficient they are more inclined to favor the return than any other step in attachment proceedings. They will generally give effect to the return made by the officer upon a writ of attachment, although informally made, provided the intention is sufficiently disclosed by the language used to be clearly discernible; but when the obscurity is so great that the purpose can not be ascertained, they will not make the return effectual by a construction which is merely conjectural.^ In many states it is presumed that the officer did his duty 1. Wilkins v. Tourtellott, 28 Kan. A return on an attachment against 825. three defendants reciting "I have at- 2. McGuire v. Church, 49 Conn. 248. tached all the right, title and interest 3. Gibson v. Park Nat. Bank, 98 N. the defendant has in and to any real Y. 87. estate in the county of Pennobscot" 4. State V. Leon, 42 N. J. L. 540. is too vague and uncertain to create a 5. Cabeen v. Douglas, 1 Mo. 336. lien on the estate of either of the de- See, also, Morgan v. Johnson, 15 Tex. fendants. Hathaway v. Larrabee, 27 568. Me. 449, 6. Hathaway v. Larrabee, 27 Me. 449. §237 PRESUMPTIONS FAVORING THE RETURN. 473 in performing the acts necessary to constitute and preserve his attachment, when nothing appears to the contrary/ In New York, where levy and personal service had been made, it was presumed that the personal service was made within the time re- quired, and the court stated further that it might reasonably be presumed that the service was 'made on the day the property was seized.^ And in that state also the recital in a return that, by virtue of an attachment against A B, the officer had levied upon certain property, the court construed the indorsement as "intended" by the return that the officer had levied on the property of the defendant.^ In Michigan, where the writ com- 1. In Maine, where an officer re- turned an attachment of personal property, and set up such attachment in defense, on the trial of an action of replevin against him for the same property, it was presumed that he did whatever was necessary to constitute and preserve his attachment; and, in the absence of any opposing proof, it was held to be sufficient evidence that the property had been in his posses- sion. Smith V. Smith, 24 Me. 555. In Kentucky a return showed that the attachment had been levied upon a town lot of the defendant, and that the officer had ' ' posted a copy of the attachment on the premises, there be- ing no tenant," the omission to state that the copy was left in a conspicu- ous place on the premises was cured by the presumption that the officer did his duty, when nothing appeared to the contrary. Lewis v.Quinker, 2 Mete. (Ky.)284. And a return in these words, "Came hand September 11, 1870, at 10 o'clock A. M., and on the twelfth day of September, 1870, at 12 o'clock, I levied this attachment on about 140 acres of land, near Eminence, Henry county, tlie property of the defend- ants. The defendants not being found, and no person being found on the land, I posted a true copy of the with- in attachment on the door of the house of the land. A. H. Ditto, S. H. C." This was held to be suffi- ciently intelligible to create a lien of the attachment upon the land. White ?7. O'Bannon, 86 Ky. 93, 5S. W.Rep. 346. In Kansas a return showed that at a certain time the officer attached cer- tain real estate, and posted a copy of the order in a conspicuous place on the premises ; this being required by the statute, where there is no occu- pant. In the absence of any showing to the contrary, it was presumed that the officer did his duty, and that there was no occupant. Head v. Daniels, 38 Kan. 1, 15 Pac. Eep. 911. Under such a statute a levy upon a large number of town lots was not made void by failure of the officer to place a copy on each lot. Blake v. Rider, 36 Kan. 693. When the month is mentioned in the return without designation of the year, it will be presumed to intend the current year. Kelly v. Gilman, 29 N. H. 385. 2. Talcott V. Rosenberg, 8 Abb. (N. Y.) Pr. N. S. 287. 3. Johnson v. Moss, 20 Wend. (N. Y.) 145. 474 RETURN OF THE WRIT. § 238 manded him to seize the property of the defendant, and his return stated that he had seized the property described in the writ, it was presumed that the property belonged to the de- fendant.^ In Mississippi, the word "levy" has been held to imply a seizure.^ And in Maine, where an officer returned on a writ that he had attached certain goods, without fixing their value, the court presumed, in the absence of all other testi- mony, that they were of the value commanded in the writ.' In Michigan, where a return was silent as to the place of seiz- ure, it was presumed to have been made as the statute directed "within the county."* And in Wisconsin the return itself will be presumed to have been made on the return day, unless the date of the return on the writ, or on entry on the record, shows specifically and positively that it was made at another time.^ The return will generally be considered sufficient when it complies substantially with the requirements of the statute, al- though it be not in the precise language of the statute under which the attachment issued.® Greater presumptions will be indulged in support of ancil- lary attachment, where no jurisdiction depends, than will be admitted in favor of original attachments, where jurisdiction is dependent thereon.' § 238. Amendment of the return — (a) Generally. — The in- dorsement of the officer upon the writ does not become matter of record until it is filed with the clerk of the court to which it is returnable.* And until such time it would seem not to be 1. Horton v. Monroe, 98 Mich. 195; Horton v. Monroe, 98 Mich. 195, 57 57 N. W. Rep. 109. N. W. Rep. 109. The same intendment has been al- 5. Slaugliter v. Bevans, 1 Pinney lowed in Alabama. Bickerstaff v. (Wis.) 348. Patterson, 8 Porter (Ala.) 245. But 6. Saunders v. Columbus, etc., Ins. see as to necessity of stating in there- Co., 43 Miss. 583. turn that the property seized is the 7. Stoddart v. McMahan, 35 Tex. property of the defendant. Snpra, 267, overruling Meuley v. Zeigler, 23 § 234. Tex. 88, and contra to Tiffany v. 2. Baldwin v. Conger, 17 Miss. (9 Glover, 3 G. Greene (Iowa) 387. Smedes & M.) 516. 8. Welsh v. Joy, 13 Pick. (Mass.) 3. Childs V. Ham, 23 Me. 74. 477 ; Courtney v. Carr, 6 Iowa 238. 4. Bushey v. Paths, 45 Mich. 181; § 238 AMENDMENT OF THE RETURN. 475 technically correct to call the mdorsement a "return." Until the writ is returned into the court, the officer has full power to make any corrections in his indorsement upon it. After the officer has indorsed his doings upon the writ, and returned the same into the court to which it was made return- able, he has no right to alter it without leave of the court,' even before the return day of such writ.'' And if the matter of amendment will affect the interests of any of the parties, such amendment can not be made without notice thereof to them.' The amendment of a return is not a matter of right, and a motion for such amendment is addressed to the sound discre- tion of the court,* and is not regulated by court rules. ^ This discretion is, in the absence of special power conferred by statute, confined to the court from which the process issued. A superior court can not, on a trial before it, allow an amend- ment to a return made to an inferior court.® It may be stated ]/^ as a general rule that the abuse or misuse of a process will be ^ corrected by the court on motion.^ And that mistakes and in- formalities in the return may be corrected at any time* by leave of the court, when such amendment will not affect the rights of third persons, and when it will be consistent with truth. ^ But it must be remembered that amendments are only allowed to the effect that the return may contain a true state- ment of what was done under the attachment, and not as an 1. Childs V. Ham, 23 Me. 74. 4. Miller v. Shackleford, 4 Dana 2. Myers v. Prosser, 40 INIicli. 644. (Ky.) 264. 3. Haynesv.Knowles, 36Mich. 407. 5. Planters' Bank v. Walker, 3 Two months after the return of the Smedes & M. (Miss.) 409. ■writ, and after defendants had ajj- 6. Brainard v. Burton, 5 Vt. 97; peared specially and moved to quash Harper ■?;. Miller, 4 Ired. L. (N. C.) 34. it, an order of the court ex parte But in Massachusetts, the supreme authorized the sheriff to amend his court continued a case to give time for return, so as to show that the defend- an application to be made to the in- ants could not be found, but this he ferior court for leave to amend the re- had previously done without leave of turn. Thatcher v. Miller, 13 Mass, the court. It did not validate a notice 270. published prior to such order so as to 7. Pomroy ■;;. Parmlee, 9 Iowa 140. give the court jurisdiction. Cochrane 8. Porter v. Miller, 7 Tex. 468. «. Johnson, 95 Mich. 67,54 N.W. Rep. i). Brainard v. Burton, 5 Yt. 67; 707. . Pacific Postal Tel. Cable Co. v. Fleisch- ner,66 Fed.Rep.899, 14 Cir.Ct.App.l66. 476 RETURN OF THE WRIT. § 239 act in completion thereof.^ By leave of the court the sheriff has the power to amend his return so as to conform to the facts; and when such an amendment is made it takes the place of the former imperfect return, and then can not be attacked collaterally for irregularity or error. ^ The discretion of the court below will not be interfered with/ An amendment to a return speaks from the date of the original imperfect return.* And if both returns when taken together will be sufficient, the attachment will be sustained.® § 239. (b) When the amendment may be made. — There is lack of uniformity in the decisions of the courts as to the time when an amendment to the officer's return on a writ of attach- ment may be allowed, but such an amendment has been allowed after demurrer,® and it would be very unusual for the court to refuse it at such time. An amendment has been allowed at a subsequent term, such amendment relating back to the proper return day.' But after the lapse of five terms of the court, when no further action had been taken or sufficient reason shown for the delay, the plaintiff was not permitted to have the process amended so as to make it returnable to the then ensuing term, that he might perfect service by the required publication.* But the corrections or mere mistakes and omis- 1. Downs V. Flanders, 150 Mass. 92, the time of the registry, but will take 22 N. E. Rep. 585. And as approaching effect only from the time of the amend- to this averment of principal see ment. Means v. Osgood, 7 Me. 146. Adams v. Robinson, 7 Pick. (Mass.) But no court will permit an amend- 461; Putnam t'. Hall 3 Pick. (Mass.) ment to affect intervening rights of 445; Hovey v. Wait, 17 Pick. (Mass.) third persons. See post, §240. 196; Maris V. Schermerhorn,3 Whart. 5. Layman v. Beam, 6 "Wharton (Pa.) 13 ; Kidd v. Dougherty, 59 Mich. (Pa.) 181. 240. 6. Moreland?;. Ruffin, Minor (Ala.) 2. Buller v. Woods, 43 Mo. App. 18. 494. 7. Malone v. Samuel, 3 A. K. Mar- 3. Thatcher v. Miller, 13 Mass. shall (Ky.) 350. 270; Pierce v. Strickland, 2 Story (U. But in Mississippi it was not allowed S. Dist.) 292. without notice to the adverse party. 4. Heatonv. Peterson 6 Ind. App. 1, Williams v. Oppelt, 9 Miss. (1 Smedes 31 N. E. Rep. 1133. & M.) 559. One case in Maine holds that after 8. Branch v. Mechanics' Bank, 50 the return has been recorded, an Ga. 41b. amendment will not relate back to ^239 WHEN THE AMENDMENT MAY BE MADE. 477 sions seem to be properly allowable after many years, where there is something on the record by which the correction can be made/ And it has been said that a writ ad quod damnum should be permitted by the court to be amended at any time before judgment.^ While an officer has been allowed to amend his return on a writ of attachment after his term of office has expired, and without notice to the opposite party," yet it has not generally been allowed after the expiration of the officer's term without some preliminary process or notice to court to show cause in the matter/ One court said that ''a liberal discretion is re- posed in the court, upon due notice to the parties adversely in- terested, to permit returns on processes to be amended for the purpose of correcting mistakes, and the fact that the term of office of the sheriff has expired is no valid objection to the exercise of this power/ An attachment was issued in Janu- ary, and levied by the sheriff's deputy. The sheriff's term of office expired in January. In May of the following year, while an action against him for the property was shown by the return to have been taken under the attach- ment, the sheriff moved to amend the return. The supreme court said that neither the pendency of the action nor the fact that the sheriff's term of office had expired, could prevent the exercise of the trial court's discretion in allowing such amendment. Jeffries V. Rudloff, 73 Iowa 60, 34 N. W. Rep. 756. An amendment was made to a re- turn, so as to show by whom the ap- praisers were chosen, although nearly twenty years elapsed, no rights of third persons having intervened. Oilman v. Stetson, 16 Me. 124. Other cases in which amendment was allowed after the officer's term has expired see Palmer v. Thayer, 28 Conn. 237; Gay v. Caldwell, Hardin (Ky.) 63. 1. Thatcher v. Miller, 13 Mass. 270; Emerson v. Upton, 9 Pick. (Mass.) 167. 2. Dawson v. Moons, 4 Munford, (Va.) 535. And even several years after the sheriff's term of office has expired there being the inquest to amend by. Gay V. Caldwell, Hardin (Ky.) 03. 3. Morris v. Trustees, 15 111. 266. 4. Wilkie v. Hall, 15 Conn. 32. 5. Jeffries v. Eudloff, 73 Iowa 60; S. P. In Miles v. Davis, 19 Mo. 408; Keen i;.Briggs, 46 Me. 467; Johnson V. Donnell, 15 111. 97. A sheriff (or deputy) who has levied an attachment and sold the property to satisfy it may make a valid return thereof a long time after he has ceased to be an officer. Welsh v. Joy, 13 Pick. (Mass.) 477. Where an officer has made a valid attachment and returned the writ without signing the return he may be permitted to sign it after going out of office. Lea v. Maxwell, 1 Head (Tenn.) 365. 478 RETURN OF THE WRIT. § 240 While all states do not require it, yet reason seems to de- mand that in all cases where application is made for leave to amend the return, at least when some time has elapsed, that there should be something to amend by, for it is more than can be expected of a man, however strong his memory, to know with certainty the performance of a particular duty when he is daily and hourly performing similar duties for different per- sons. AVhere something does appear on the record by which the correction can be made it is properly allowable.^ In such cases it has been allowed after judgment.'' An amendment may be allowed to the return although the attachment defendant may have made a voluntary assignment for the benefit of his creditors subsequent to the attachment." An officer may be permitted to amend his return so as to ren- der it competent evidence in his own behalf, in an action against him for breach of duty in the service of the writ ;* but he can not be forced to amend it so as to render it competent evidence against him, nor can he be forced to amend it for a7iy pur- pose.® § 240. (c) No amendment permitted that will affect inter- vening title or interest of a third person, — No amendment of an officer's return will be permitted to have the effect of lessen- ing or destroying the rights of third persons acquired in good But in Mississippi an amendment levied upon was grown on the rented to a return lias been denied after the land. Odom v. Shackleford, 44 Ala. officer's term of office has expired. 331. Cole V. Dugger, 41 Miss. 557. An amendment may be made to the 1. Miller v. Thatcher, 13 Mass. 270; return of a summons, even at a hear- Emerson v. Upton, 9 Pick. (Mass.) ing of a motion to reverse the judg- 167. ment; and bhe amended return, when Allowed pending a writ of entry made, will relate back and take the brought by one claiming under the place of the original. Capeheart v. debtor. Pratt v. Wheeler, 6 Gray Cunningham, 12 W. Va. 750. (Mass.) 520. And after a writ of error 2. Fairfield v. Paine, 23 Me. 498; is sued out to reverse the judgment. Palmer v. Thayer, 28 Conn. 237. Irvine v. Scobee, 5 Little (Ky.) 70. 3. Pond v. Campbell, 56 Vt. 674. The return of the levy upon a crop 4. Smith v. Leavitts, 10 Ala. 92. on a suit by a landlord against the 5. Maris v. Schermerhorn,3Whart. tenant, may be amended after judg- (Pa.) 13. ment, so as to show that the crop § 240 NO AMENDMENT PERMITTED, ETC. 479 faith in the time intervening between the defective return and the amendment thereof, when there is sufficient appearing by the original return to give them notice that all the reqmrements of the law have probably been complied with, unless they have had notice by record or otherwise.^ But if such third person have actual or constructive notice that the officer has done his duty in making the attachment, and that there was an omis- sion, by mistake, in his return, which omission if supplied, would perfect the officer's proceedings (or if that fac be clearly manifest on the record), his intervening interest will have no effect to prevent an amendment.^ Where such third persons have not had such actual or constructive notice of the defect m the officer's return, an amendment of his return will operate, as to them, from the date of the amendment. 1. Fairfield v. Paine, 23 Me. 498; Banister v. Higginson, 15 Me. 73; Berry v. Spear, 13 Me. 187 ; Davidson V. Cowan, 1 Devereux (N. C.) 304; Bowman v. Stark, 6 N. H. 459; Bes- sey V. Vose, 73 Me. 217; Emerson v. Upton, 9 Pick. (Mass.) 167. Wliere, however, no third person's interests intervened, a return of an execution on land was permitted dur- ing the pendency of a suit in which the title to the land was brought in question. Eveleth v. Little, 16 Me. 374. And an amendment was allowed so as to show by whom the appraisers were chosen, after the lapse of nearly twenty years, when no rights of third persons intervened. Gilman v. Stet- son, 16 Me. 124. 2. Where one attorney in behalf of two absent creditors sued out two at- tachments against the same debtor, one writ upon November 19, and the other upon December 20, the sheriff erroneously made return upon the lat- ter as having been levied November 20, and the former as December 19, therebv apparently giving priority to the second writ. At the return term. the sheriff, by leave of court, amended the returns by changing the names of the months. It was held that the second attaching creditor had co7i- structive notice through his attorney that the attachment of the other was first levied, and that therefore the amendment was properly made. Haven v. Snow, 14 Pick. (Mass.) 28. And in like manner a sheriff having made a mistake in his return as to the year in which he executed the writ, and the entry of the judgment show- ing that he must have meant the pre- vious year, his return was properly amended according to the facts. Third persons acquiring rights subsequent to the date as corrected, and prior to the date given on the original return, were affected, but could not complain because the record clearly showed the mistake and no one could possibly have been misled or injured by it. Johnson V. Day, 17 Pick. (Mass.) 106; Childs V. Barrows, 9 IMetc. 413 ; Fair- field V. Paine, 23 Me. 498. 3. Ohio Life Ins. Co. v. Urbanalns. Co., 13 Ohio 120. See also Means v. Osgood, 7 Me. 146. 480 RETURN OF THE WRIT. § 241 § 241. (d) What errors may be corrected by amendment. Such amendments may generally be allowed as will have the effect of making the return a true statement of what was done under the attachment, and no amendment will be allowed which has the effect of being an act in completion of the attachment. V A return may be permitted to be amended so as to show when the attachment was in fact made.^ And when only a memo- randum of the time and service has been indorsed, the officer will be permitted to amend it so as to make a full return, and this even after he has ceased to be in office.* But if no minutes were made at the time of his attachment no amendment will he allowed after the lapse of years." An ambiguous return may be amended so as to make it clear what acts were per- formed.^ And mere mistakes may be amended at any time.® The officer has been allowed to amend his return by insert- ing a statement that he posted a copy of the attachment in the manner required by law ;' by changing the date of the year when the mistake is apparent from the date of the writ and the entry of the judgment ;* by changing the name of the month when the mistake is made apparent by the record f by inserting the word "county" instead of "inferior" in the clause "re- turnable to the inferior court," where jurisdiction had recently been taken from the inferior court ;" by changing the stated value of the goods attached from $7.00 to $2,200, the actual value when the former statement was a pure mistake ;" by in- serting a statement that the property was attached "as the prop- erty of A and B ; "^^ so as to show that the effects attached were 1. Downs V. Flanders, 150 Mass. 92, 7. Wilson v. Ray, T. U. P. Charlt. 22 N. E. Rep. 585. (Ga.) 109. 2. Kidd V. Dougherty, 59 Mich. 240. 8. Johnson v. Day, 17 Pick. (Mass.) 3. Adams v. Robinson, 1 Pick. 106. (Mass.) 461. 9. Plavent^. Snow, 14 Pick. (Mass.) 4. Hovey v. Wait, 17 Pick. (Mass.) 28. 196. 10. Covington v. Cothrans, 35 Ga. 5. Maris v. Schermerhorn, 3 Whart. 156. (Pa.) 13. 11. Pierce v. Strickland, 2 Story (U. 6. Ritter v. Scannell, 11 Cal. 238. S. Dist.) 292. See, ante, § 239, as to notice of the 12. Bank of Northwest v. Taylor, 16 defect and the necessity of something Wis. 609. appearing of record to amend by. ^ 242 EFFECT OF AMENDMENT OF RETURN. 481 the property of the defendant;^ by specifying the particular articles attached f by inserting a description of land which was omitted by mistake f by affixing his signature nunc pro tunc, where the return is otherwise proper/ even though he has duly returned a subsequent attachment on the same land. The officer may amend his return by correcting a misdescrip- tion of the realty attached, when the levy and notice is cor- rect.' But he will not be permitted to change the description of the land so as to make the attachment apply to other lands of the debtor than those described in the first indorsement.' § 242. ( e ) Effect of amendment of return,— When the sher- iff is permitted to amend his return to a writ of attacliment, the amendment relates back to the time when the original re- turn was made, and makes the return good ab initio^ unless intervening rights prevent such amendment from having any effect as to them.^ , , . ^ -u The effect of the amendment of mere formal defects, as sliown above, when these defects are such as to be apparent, is to cure the error and make the return good from its date regardless of any rights which may have been acquired in the intervening time, whether such interest has been acquired by purchase or subsequent attachment." The effect of unusual additions to the return, it has been said, is to cause them to be considered as a badge of fraud." I.Mason v. Anderson, 3 T. B. 9. See "Intervening Rights of Third Mon. (Ky.) 293. Persons," ante, §240. 2 Baxter v. Rice, 21 Pick. (Mass.) However, under peculiar circum- -^gy stances it has been held in one case 3 Vanderheyden v. Gary, 38 How. in Maine that the amendment did not (N Y ) Pr 367. relate back, but took effect only from 4 Luttren^.Martin,112N.C.593,17 S. the time of the amendment. Means v. E Rep. 573; Dewar v. Spence, 2 Osgood, 7 Me. 146. And in one case m Whart. (Pa.) 211 ; Lea v. Maxwell, 1 New Hampshire, that the amendment Head (Tenn.) 365. ^[^ not relate back but had the effect m•^^'4^f3 "■ ^^™'^'' ^ of an attachment from the date of the e^McClure v. Smith, 14 Colo. 297, amendment. Cogswell v. Mason, 9 23 Pac. Rep. 786. N. H. 48. 7. Williams v. Brackett, 8 Mass. 240. -^q Haven v. Snow, 14 Pick. (Mass.) 8. Smith t^ Leavitts 10 Ala. 92 ; Maxwell, 1 Head (Tenn.) Heaton v. Peterson, h Ind. App. 1. ^1 „"' ^ . „ , , -d • „q ■^/r^ aqo N. E. Rep. 1133 ; Malone v, Samuel, 3 365 ; Fairfield t;. Paine, 23 Me. 498. A. K. Marshall, (Ky.) 350. 11. Pomroy v. Parmlee,9 Iowa 140. Att. 31 CHAPTER XII. POSSESSION OF ATTACHED PROPERTYc Part I. Possession by Sheriff. §243. Nature, purpose and effects §254. stated generally. 244. Possession must be actual, visi- 255. ble and notorious. 245. Apparent exceptions to the 256. rule. 246. Officer can not retain posses- 257. sion of tenement in which personal property is found. 258. 247. Character of the officer's pos- session. 259. 248. The acquiring of a special title by the officer does not change the ownership. 260. 249. Possession of property held by tenants in common, copart- ners, etc. 261. 250. Duration of sheriff's title and possession. 262. 251. Degree of care required from the sheriff. 263. 252. Consequence of officer's neg- lect to take due care. 253. OflBcer may release his posses- sion when. Possession when sheriff's term of office expires. Effect of intermixing goods with others of the same kind. Abandonment — r elinquish- ment of possession. What has been held to be an abandonment. What has been held not to be an abandonment. When officer forced to part with possession there is no abandonment. After an abandonment the property is liable to a second attachment. Action for interference with officer's possession. Officer's disposition of perisha- ble property. Expenses incurred in keeping the property — Compensation of the officer. Part II. Possession by Agent of Sheriff. \ 264. Officer's power to appoint an agent. 265. Nature of the receiptor's pos- session. 266. Who may become a receiptor or bailee. (482) § 267. Contents of the receipt. 268. Effect of mentioning in the receipt the value of the prop- erty attached. §243 NATURE, PURPOSE AND EFFECTS STATED. 483 §269. Abandonment by bailee dis- §276, (c) When demand is neces- solves attachment — What is such an abandonment. 277. 270. Receiptor not under control of creditor. 271. Continuation of officer's liabil- 278. ity for acts of receiptor. 272. When liability of officer, who has delivered goods to a re- 279. ceiptor, ceases. 273. Officer may at any time de- 280. mand property delivered on 281. receipt. 282. 274. Action against the receiptor and on the receipt. 283. (a) Nature of the action— When it will lie. 284. 275. (b) When the action will not lie. 285. sary before bringing suit. (d) Return of property on demand ends receiptor's liability. (e) When demand is not necessary before bringing suit. (f ) Who may maintain the action against a receiptor. (g ) Form of the action. (h ) Pleading in the action. ( i ) Proof necessary to sus- tain the action. ( i ) Proof in defense of the action. (k) Judgment in an action against receiptor. Fees and costs of bailees. Part I. Possession by Sheriff. § 243. Nature, purpose and effects stated generally. — At- tached property is in custody of law and subject to the order of the court which issued the process. The immediate posses- sion of chattel property is in the sheriff, who is no more than the servant of the court, and it is his duty to retain such pos- session until directed by the court to sell it on execution issuing after judgment is rendered on the merits; ^ or until the attach- ment lien is dissolved, and it thereby becomes his duty to return it to the defendant. If the sheriff relinquishes his possession he becomes liable to the plaintiff, and if he does not take proper care of the prop- erty he becomes liable to the defendant as hereinafter shown. ^ Furthermore, if the sheriff parts with such possession the lien acquired by the attachment will thereby be lost, and the sheriff, besides his liability to the plaintiff directly, becomes liable as for contempt of court. § 244. Possession must be actual, visible and notorious. — 1. Enos V. Brown, 1 D. Chipman 2. See post, §384, " Liability of the (Vt.) 280. Officer." 484 POSSESSION OF ATTACHED PROPERTY. §§ 245, 246 The doctrine that an actual and visible change of possession must accompany every attachment and transfer of personal property was early adopted and has been strictly adhered to, and one court has tersely said that ''from a rule of law so long settled and so well understood and relied upon in the com- munity, we are not at liberty to depart. ' ' ^ Until personal prop- erty attached is taken into the custody of the officer serving the writ, no attachment can be said to exist, and although it need not be actual manual custody in all cases, yet it must in every case be such custody as the nature of the subject attached will admit. ^ The officer need not have touched every article which he attaches^ for an inventory may be sufficient, but he must leave some one in charge if he does not actually carry the goods away with him.^ He must maintain such custody and control of the property as will give unequivocal notice of the same,* or the attachment can not be sustained against subse- quent attaching creditors, or purchasers without notice.* § 245. Apparent exceptions to the rule. — When there is no actual manual possession in any one else, an officer may claim possession of the property attached by him, even though he has not the actual possession in himself; provided, however, he has made a proper return.® And in the case of growing crops, constructive possession is all that is necessary for the sheriff to maintain control of attached property; and a bond is applicable and appropriate, as the crop reaches the state of ripening, to prevent a removal. ' § 246. Officer can not retain possession of tenement in which personal property is found. — When personal property 1. Flanagan v. Wood, 33 Vt. 332. 3. Huntington v. Blaisdell, 2 N. H. When delivery can not be enforced 317. See ante, § 207, " How the Levy and actual possession can not there- to be Made." fore be obtained, attachment is not the 4. Sams u. Armstrong, 8 Mo. App. proper remedy. Harrison v. Mock, 573. 10 Ala. 185. But garnishment may 5. Bridge v. Wyman, 14 Mass. 190. be available in such case. See Vol. II. 6. Hatch v. Fowler, 28 Mich. 206. 2. Root V. Railroad Co., 45 Ohio 7. Grover v. Buck, 34 Mich. 519. As State 222. to " Bond," see post, § 286. § 247 CHARACTER OF THE OFFICER'S POSSESSION. 485 is attached, it is the officer's duty to remove the property from the possession of the debtor as soon as may be and take it into his own immediate possession; the permanent stationing of a keeper over the property is not warranted by law.' The officer can not remain in another's house, nor authorize any keeper to remain there to keep the goods attached therein, for a longer time than is reasonably necessary to enable him to remove the goods, unless he has the consent, express or implied, of the owner of the building. Such a retention of possession without consent renders the officer liable as a trespasser ab initio ^ The occupation of the defendant's house for seven hours in the middle of the day, in Boston, by a keeper of the sheriff, with- out making any attempt to remove the goods attached, is un- reasonable and renders the sheriff liable as a trespasser.^ § 247. Character of the officer's possessioiio— The nature of the officer's possession will, of course, depend upon the nature and position of the property, but as a general rule the custody should be such as to enable the officer to retain and assert his power and control over the property so that it can not be with- drawn or taken by another without his knowing it.* The sher- iff acquires a lien by virtue of the levy under attachment, and that constitutes a qualified and special title which subsists until all demands are paid for which the attachment was issued, and until judgment and sale of the property seized ;® unless the attachment is sooner dissolved f or unless the plaintiff fails in his action, or does not levy an execution thereon within the time prescribed, or by the satisfaction of the judgment before the sale of the goods.' The interest acquired by the sheriff by 1. Cutter V. Howe, 122 Mass. 541; 5. Rhoads v. Woods, 41 Barb. (N. Waterhouse v. Smith, 22 Me. 337. Y.) 471 ; Collins v. Smith, 16 Vt. 9. 2. Malcom v. Spoor, 12 Met. 279; 6. See i^osi, § 326, " Dissolution of "Williams v. Powell, 101 Mass. 467; Attachment." Rowley v. Rice, 11 Mete. (Mass.) 337. 7. Ladd v. North, 2 Mass. 514; Par- 3. Davis V. Stone, 120 Mass. 228. sons v. Phillips, 1 Root (Conn.) 481; 4. Hemmenway v. Wheeler, 14 Pick. Johnson v. Edson, 2 Aikens (Vt.) 299. (Mass.) 408. 486 POSSESSION OF ATTACHED PROPERTY. §§248,249 virtue of a levy is a special property/ founded upon his respon- sibility for the safe keeping of the chattels attached.^ The sheriff is the agent of both the plaintiff and the defend- ant in attachment — he holds possession for whom it may con- cern — and whichever acquires the ultimate right to the property may have his action against the officer for a neglect to perform his official duty/ The sheriff, by his special property in the goods attached, has such an interest as will enable him to insure them, but he is not bound to do so. His deputy may insure them in the name of the sheriff, but he can not give a "premium note" in the sheriff's name.* § 248. The acquiring of a special title by the officer does not change the ownership. — The attachment does not change the ownership of the property attached.® The attaching officer has only the special interest in the property attached that is created by the attachment and measured by the amount neces- sary to pay the debt, for the collection of which the action was brought.® § 249. Possession of property held by tenants in common, copartners, etal. — As hereinbefore shown,' there is lack of uni- formity in the holdings of the courts of the different states re- garding the levy of an attachment upon property of the defend- ant, in which a stranger to the action holds a joint interest. 1. Norton v. People, 8 Cow. (N. Y.) 4. White v. Madison, 26 How. Pr. 137. (N. Y.) 481. 2. Lathrop v. Blake, 23 N. H. 46. 5. Fettyplace v. Dutch, 13 Pick, 3. Starr V. Taylor, 3 McLean (U. S.) (Mass.) 388; Ludden v. Leavitt, 9 542; Blake v. Shaw, 7 Mass. 505; Mass. 104; Dillenbach v. Jerome, 7 Stockton V. Hyde, 5 La. Ann. 300. Cowen (N. Y.) 294; Starr v. Moore, 3 For particulars in regard to " Lia- McLean (U. S.) 354. bility of Executive Officer," see post, The defendant may sell the attached § 384. property subject either to the attach- In Connecticut, the officer is said to ment or the execution, provided he be a bailee for the purposes of the law can make actual delivery of the prop- without any personal interest in the erty without trespass. Starr v. Moore, property or in the possession of it. 3 McLean (U. S.) 354. Fowler v. Bishop, 31 Conn. 560. 6. Kerr v. Drew, 90 Mo. 147. 7. See ante, § 211. § 250 DURATION OF SHERIFF'S TITLE AND POSSESSION. 487 But as a general rule it may be stated that while it is the officer's duty to seize and hold the defendant's undivided in- terest, yet he can not distrub the stranger in the possession of his undivided interest without becoming liable to him therefor. Members of a partnershij) can not be excluded from the pos- session of partnership property by an attachment of such property for the debt of one of the partners.' Although in Connecticut it is held that an officer may hold in his possession partnership property attached for the private debt of one of the partners, subject to judgment thereon.^ And in Maine it is held that property in the hands of an officer in attachment for the debt of one partner can not be replevied by another.' Vermont solves this problem by holding that when a man conjoins his interest with another in the ownership of personal chattels his right of possession is necessarily subject to a paramount right of the law. The court saying that *'it is impossible to hold that the interest of one joint owner of personal property can be taken and sold on his individual debt, consistently with our laws, without holding that the possession by the officer is para- mount to all others."* § 250. Duration of sheriff's title and possession. — Personal property attached on mesne process is considered in the custody of the law, in the keeping of the officer w^ho served the writ of attachment, for the purpose of thereafter satisfying the execu- tion which may be obtained in the suit, and he must retain it in his possession until the determination of the attachment suit in which it was seized; and if the plaintiff recover judg- ment, until the property is sold on execution issued thereon,' or until the expiration of the time prescribed by statute for the levy of an execution, or until the satisfaction of the judgment before sale of the goods; unless the judgment be otherwise 1. Morrison v.Blodgett, 8 N. 11.238. 471; Enos v. Brown, 1 D. Chipman 2. Stevens v. Stevens, 39 Conn. 474. (Vt.) 280. 3. Hacker v. Johnson, 6(5 Me. 21. By the very act of delivering the 4. Whitney v. Ladd, 10 Vt. 165. execution to the officer the property is 5. Rhoads V.Woods, 41 Barb. (N. Y.) charged or taken upon execution. Enos V. Brown, 1 D. Chipman (Vt.) 280. 488 POSSESSION OF ATTACHED PROPERTY. § 251 satisfied/ or unless in case of perishable goods, he is judicially ordered to sell the same in pursuance of provisions of the statute.^ The dissolution of the attachment will be, of course, a determination thereof, and it is the duty of the officer to re- tain the control of it so that he may return it if required.' He must retain it in his possession until he has notice that the suit is discontinued. He has no authority, while the suit is still pending, to deliver it to the plaintiff.* But he can, in some states, deliver it back to the debtor on a receipt;* and if he does this on the advice of the plaintiff's attorney, his personal responsibility ceases.® The sheriff has no right to permit the property to go out of his possession except in due course of law, and he becomes responsible for it if he does. His return charges him w4th the property and he can not discharge himself.' The liability of the officer for the attached pr©j)erty which he has in his pos- session is not terminated, even though the informal writ on which the property was seized is afterwards made to assume legal form.' § 251. Degree of care required from the sheriff. — A sheriff is held responsible for the safe keeping of property to the extent of other bailees.^ While the sheriff has been held to the exercise of more than ordinary care, the better rule seems to be that which requires him to exercise only ordinary care 1. Ladd V. North, 2 Mass. 514; 5. See _pos<, § 264. Knap V. Sprague, 9 Mass. 258; Stack- 6. Farnham v. Gilman, 24 Me. 250. pole V. Hilton, 121 Mass. 449; Par- 7. Sanford v. Boring, 12 Cal. 539. sons V. Phillips, 1 Boot (Conn.) 481; 8. Childst?. Ham, 23 Me. 74. Further Johnson v. Edson, 2 Aik. (Vt.) 299; as to the " Liability of the Officer," Collins V. Smith, 16 Vt. 9. see j^ost, § 384. 2. McKay v. Harrower, 27 Barb. (N. 9. Bridges v. Perry, 14 Vt. 262. Y.) 463. He is prima facie liable to produce 3. Farris v. The State, 33 Ark. 70. the property upon execution, but he 4. Vanneter v. Grossman, 39 Mich, may, in Vermont, excuse himself by 610. showing that it is not in his power Plaintiff can not maintain replevin and that he has been guilty of no for it. Vanneter v. Grossman, 39 fault. Bridges v. Perry, 14 Vt. 262; Mich. 610. Ide v. Fassett, 45 Vt. 68. §§ 252, 253 officer's neglect to take due care. 489 in the preservation of such property.* He must exercise such care as a prudent man would take of his own property.^ But if he leaves it in the possession of the defendant in the action, he becomes an insurer of it to the plaintiff, and nothing will excuse him for its loss but the act of God or the public enemy.* § 252. Consequence of officer's neglect to take clue care. — If the officer should fail to take proper care of attached property he becomes liable to the creditor in the event of a successful termination of the suit,* and to the alleged debtor if the cred- itor should fail, but if the property has gone back to the hands of the debtor, the officer is relieved from any claim for it made by him.' And if he does not comply with all the legal require- ments, or show some legal excuse, he not only becomes liable to those in whose behalf he holds and to the owner, but also to those claiming under the levy.* The officer who attaches is lia- ble for neglect or misconduct in the keeping of the goods, and in the event of their loss or destruction, the person injured may recover to the extent of the injury sustained; which is the value of the property in case of loss.'' § 253. OSicer may release his possession when. — When an officer has taken goods into his possession by virtue of a writ of attachment, he may, at his discretion, release the same, if a third party claim that he is their owner; but the officer does this at his peril and the burden is upon him to establish the fact that the attached property did not belong to the attach- ment defendant.* The sheriff may release the attached prop- 1. Cresswell v. Burt, 61 Iowa 590; 7. Jenner w. Joliffe, 8 Johns. (N. Y.) Dorman v. Kane, 5 Allen (Mass.) 38; 381. Parrott v. Dearborn, 104 Mass. 104; See further as to the " Liability of Snell V. State, 2 Swan (Tenn.) 343. the Officer," post, § 384. 2. Briggs V. Taylor, 28 Vt. 180; Ide v. 8. Wadsworth v. Walliker, 45 Iowa Fassett, 45 Vt. 68; Moore v. Wester- 395. See further as to "Interveners," velt, 1 Bosw. (N. Y. Super. Ct.) 357. post, § 384. 3. Moore v. Westervelt, 1 Bosw. (N. When the officer doubts that the Y. Super, Ct.) 357. property seized does belong to the at- 4. Smith V. Church, 27 Vt. 168. tachment defendant, he may summon 5. Moulton V. Chapin, 28 Me. 605. a jury to try the question of title. 6. Jordan v. Gallup, 16 Conn. 536. Rowe v. Bowen, 28 111. 116; Magne v. Seymour,5Wend.(N.Y)309. Posf,§430. 490 POSSESSION OF ATTACHED PROPERTY. §§ 254, 255 erty to the defendant upon the giving of certain bonds, as will be shown in the next succeeding article/ and he may sur- render his possession to some responsible person in certain cases by taking the receipt of such person therefor in the man- ner hereinafter made to appear.'^ But the plaintiff is not, at common law, entitled to the possession of the property at any time, and by interfering with the officer's possession in any manner he renders himself liable as a trespasser.' § 254. Possession when sheriff's term of office expires.— The general rule is that the sheriff may, at the expiration of his term of office, retain the personal property held by him under a writ of attachment: that he need not turn it over to his successor in office. And the statute of California expressly pro- vides that he is not to turn over property on which he has made a levy.* The removal of the sheriff from his office abates noth- ing of his power to retain possession of the property which he rightfully took upon the original writ of attachment. He must hold the same, during the time required by the statute after judgment for the levy of the execution, for the ultimate pur- pose for which he began the service.* After such time has ex- pired without a demand therefor having been made upon him on the execution, he is no longer chargeable with the prop- erty.® However, it is, in Michigan, made the duty of the ex- sheriff, who has attached property in his custody, to expose such property to the sheriff when requested by him, in order that such goods may be taken in execution and sold to satisfy the same.' § 255. Effect of intermixing goods with others of the same kind. — Something has been heretofore said of the manner in which the levy should be made on chattels intermixed with those of a stranger and the effect of not separating them there- 1. See post, §§ 286 and 302. under a code, see Skinner v. Stuart, 2. See post, § 266. 39 Barb. (N. Y.) 206. S.Atkins v. Swope, 38 Ark. 528; 4. Sagely v. Livermore, 45 Cal. 613. Blanchard v. Brown, 42 Mich. 46. 5. Tuckey v. Smith, 18 Me. 125. As to plaintiff's provisional remedy 6. Lawrence v. Eice, 12 Mete. 527. 7. Fletcher v. Morrell, 78 Mich, 176. § 256 ABANDONMENT. 491 from.* If one officer attaches goods and mixes them with other goods of the same kind theretofore attached by another officer on a writ against the same defendant, so tliat they can not be identified, he loses his lien and his attachment is defeated; and the first attaching officer may rightfully retain the whole. ^ Furthermore, if he leaves the goods which he seeks to attach, intermingled with other goods of the same debtor and claims the whole, so that another officer can not distinguish which goods have been attached, the latter officer may attach the whole.,' § 256. Abandonment —Relinquishment of possession. — An attachment is regarded as abandoned and the lien will be dis- solved if the officer does not, by himself or his agent, retain the property in his possession, or under his control with power of taking immediate possessions unless a special statute estab- lished a different rule/ Where the officer leaves attached chat- tels on premises of the debtor, for the use of the debtor and his family, the same as before the seizure, and does not separate them from the other goods of the debtor, he prima facie loses his property in them on the ground of presumed fraud or abandonment.^ And leaving the property in the custody of the defendant's servant is an abandonment, because the serv- ant's possession is the possession of the master.® In some states the attaching officer may, as hereinafter more fully shown,' take a receipt from the defendant for the redelivery of the goods on the demand or payment therefor, and leave them without removal; but he must, in order to preserve the attach- ment, retain the control of them himself or by his servant, or have the power of taking immediate possession.* If there be no special statute or local law governing the return of the goods 1. See ante, § 210. 5. Roberts v. Scales, 1 Ired. (N. C.) 2. Gordon v. Jenny, 16 Mass. 465. Law 88; Pomroy v. Kingsley, 1 Tyler 3. Sawyer v. Merrill, 6 Pick. (Mass.) (Vt.) 294. 478. 6. Russell v. Major, 29 Mo. App. 167. 4. Nichols V. Patten, 18 Me. 231; 7. See post, § 264.. Sanderson v. Edwards, 16 Pick. 8. Weston v. Dorr, 25 Me. 176. (Mass.) 144; Thompson v. Baker, 74 Me. 48. 492 POSSESSION OP ATTACHED PKOPERTY. § 257 to the debtor, there is no constructive possession of the goods attached in the officer after he has left them in the possession of the debtor.* When the possession and control of the property is relin- quished by the officer there is a termination of the lien, and the general owner is remitted to his property unencumbered; because possession of personal property is the only indicium of ownership, and to allow the debtor to retain possession after service of attachment is prima facie proof that the attachment is fraudulent in respect to creditors.^ And in the absence of a special statute no notice will preserve the lien against an at- tachment by another officer.^ Even a redelivery of the prop- erty into the possession of the officer will not revive the lien, although the goods were so delivered expressly to be appro- priated to the payment of the debt on which the action was brought.* However, in regard to bulky or ponderous articles of per- sonal property, there is usually some special statute or well- established local law whereby an officer may retain constructive possession of the same, after an attachment levy; on complying with the terms of such statute or law he retains the right to regain actual possession should it become necessary to remove the goods for safety.* But such return of possession to the debtor must be without collusion or fraud, and the officer remains as liable for their safety as though he had them in his actual pos- session.^ With the exception, it seems, that where the property is returned to the keeping of the debtor, the officer is not re- sponsible to him for an interference by third persons.' § 257. What has been held to be an abandonment. — Under a statute providing that ''the officer serving the writ shall take and retain the custody and possession of the property attached," 1 . Pillsbury v. Small, 19 Me. 435. 5. Wentworth v. Sawyer, 76 Me, 2. Taintor w. Williams, 7 Conn. 271 ; 434; Woodman v. Trafton, 7 Greenl. .Tones L. & M. Co. v. Faris, (S. Dak.) (Me.) 178; Higgins v. Drennan, 157 60 N. W. Rep. 403. Mass. 384, 32 N. E. Rep. 354. 3. Dunklee v. Fales, 5 N. H. 527; 6. Hubbell v. Root, 2 Allen (Mass.) Bagley v. White, 4 Pick. (Mass.) 395. 185. 4. Gower v. Stevens, 19 Me. 93. 7. Patch v. Wessels, 46 Mich. 249. § 258 WHAT HELD NOT TO BE AN ABANDONMENT 493 the fact that the sheriff who levied an attachment on hay, grain and cattle on a farm, left all the stuff in the possession of a tenant of the attachment debtor, and the tenant then moved off, leaving the attached stuff on tlie place, was held to be an abandonment by the officer and the lien was thereby lost.* The abandonment by the absconding of the officer's keeper is an abandonment by the officer, and the attachment lien is tliereby lost, where the keeper leaves no one in his place, even though he posted a notice of the attachment near the goods. ^ In a case where the keeper absented himself from the personal property every night without giving any in- timation of his return, it was said to be an abandonment, and the taking of such proj)erty in replevin by a mortgagee was given priority.' But it is not necessary in order to maintain an attachment lien that the keeper should be at all times able to resist fraud and violence in retaining his actual possession.* The unlawful sending of goods from out the state, with in- structions to the person receiving them to sell at private sale, has been held to be an abandoment and destruction of the lien enabling the former owner or creditor to take control of them.^ § 258. What has been held not to be an abandonment. — Where the officer, without parting with the actual control, sur- renders the property in the immediate keeping of a receiptor or defendant in compliance with the local law or special statute in the manner hereinafter shown,^ there is no abandonment or loss of lien. And in the absence of such local law or statute the officer may, without removing the property from the de- fendant's house, permit the defendant's family to have such temporary use of it as will not injure it.' The court in one case saying that "if such officer chooses to assume such risk 1. Hardin v. Sisson, 36 111. App. 383, 5. Dick v. Bailey, 2 La. Ann. 974. 2. Carrington v. Smith, 8 Pick. 419; . 6. See as to " Keepers," i?os«, § 264, Sanderson v. Edwards, 16 Pick. 144. and as to " Forthcoming Bond, "_posf, 3. Boynton v, Warren, 99 Mass. 172. § 286. 4. Harriman v. Gray, 108 Mass. 229. 7. Train v. Wellington, 12 Mass. As will more fully appear subse- 495 ; Young v. Walker, 12 N. H. 502, quently, see post, § 269. 494 POSSESSION OF ATTACHED PROPERTY. § 258 we know of no rule of law to forbid it."* And an attachment is not dissolved if the officer's keeper of personal property- allows the defendant out of humanity to use it.^ Attached property placed by an officer by permission upon the premises of a person, who refuses to assume any responsi- bility concerning it, is still in the possession and custody of the officer.^ "Where an officer attached goods and left them in a building which he kept locked but occasionally visited without objection and thereafter delivered one of the keys to a third person who was not connected with the defendant in any way, there was no abandonment of the attachment.* As an example of what is not an abandonment, although the sheriff's term of office may have ceased and he not have re- tained actual manual possession, the following instance is given: The plaintiff sued the sheriff to recover the value of certain counters and shelving owned by the attachment defend- ant, which property the sheriff had been especially directed to levy upon, alleging that the sheriff had negligently permitted the property to pass out of his possession and that he had thereby lost the means of collecting his judgment because the defendant was insolvent. The evidence showed that the sheriff had attached counters and shelving and that after his term of office had expired an order to sell them was delivered to his successor. The successor said he had not sold them be- cause the door was locked and he supposed he had no right to break it open. It appeared at the time of the trial that they still remained in the store, which was unoccupied, and were in as good condition as ever and that no third parties were making any claim to them. The courts held that there was no abandonment of the attachment and that the counters and shelving could still be sold to satisfy the plaintiff's lien.® 1. Farrington v. Edgerley, 13 Allen 2. Baldwin v. Jackson, 12 Mass. 131. (Mass.) 453. 3. Marshall v. Town, 28 Vt. 14. The risk in most cases would be 4. Commonwealth v. Brigham, 123 greater because of liability to a second Mass. 248. attachment than from danger of de- 5. Wolf v. Taylor, 68 Tex. 660 6 S. preciation in the value of the prop- W. Rep. 855. erty. See post, § 260. § 259 PROPERTY IS LIABLE TO A SECOND ATTACHMENT. 495 Where there has been an unlawful attachment and it be- comes the duty of the officer to return the property to the de- fendant, a mere notice of a relinquishment of the attachment by the officer to the defendant does not constitute a return of the property, nor does it amount to an equivocal offer to re- turn it.^ It is not an abandonment, for an officer, who has attached personal property and taken it from the possession of the de- fendant to a place of safe-keeping, to subsequently remove it; and his lien is not lost if in removing and while upon the highway it is taken from him on a second attachmento^ § 259. When officer forced to part with possession there is no abandonment.— The sheriff is, as above shown, responsible for the safe keeping of property to the extent of other bailees. Where he has made an attachment of personal property he is prima facie liable to produce it upon execution, but it seems that he may excuse himself by showing that it is not within his power so to do and that he has been guilty of no negli- gence." If he has taken all sufficient care of the property which he seized in attachment, and the same is stolen from him, he is not liable.* And where attached personal property is, without the officer's consent, taken out of the limits of his precinct, his attachment is not abandoned, nor is he exempted thereby from his liability to answer for it to the plaintiff.^ Nor does the officer lose his hold of attached property, where an inspector of the revenue makes an unauthorized seizure of it and takes it into his possession. Even the declaration of the attaching officer, that he relinquishes his claim to the United States inspector, does not constitute an abandonment of it.° Nor will a second attachment of property in the of- 1. Becker v. Bailies, 44 Conn. 167. 29. See as to " Liability of Officer," 2. Butterfield v. Clemence, lOCush. post, § 384. (Mass.) 269. 5. Lovejoy v. Hutchins, 23 Me. 272. 3. Bridges v. Perry, 14 Vt. 262 ; Ken- 6. Beech v. Abbott, 6 Vt. 586. And dall V. Morse, 43 N. H. 553. see as to the property being in custody 4. Dorman v. Kane, 5 Allen (Mass.) of the law, ante, § 56. 38. But see Lovell v. Sabin, 15 N. H. 496 POSSESSION OF ATTACHED PROPERTY. § 260 ficer's hands, made with force by another officer, destroy the lien of the first attachment.^ § 260. After an abandonment the property is liable to a second attachment.- — While an officer holds the property under an attachment, a second attachment can not be made by an- other officer, but must be made by the officer holding the prop- erty under the first attachment.^ But where the first attach- ing officer, does not, by himself or another, retain possession of the property attached, a second attachment or bona fide sale will prevaiL^ And although the first officer may have given notice of his attachment, it will not invalidate the subsequent attachment.* It is the officer's duty to retain possession, and the mere knowledge of an attaching officer of the existence of a preceding attachment, will not prevent the levying of his at- tachment, when the previous attaching officer has relinquished his possession.^ The correct rule in this regard seems to be, that w^hen the second attaching officer finds property in the posses- sion of the debtor, the mere knowledge on his part that the property has been attached will not prevent him from making a valid attachment of it, for if he finds the property in ths posses- sion of the defendant and knows only that it has once been at- tached, he may well presume that it is in his possession be- cause the suit has been compromised and the attachment dis- solved,^ but if he knows that there is a subsisting attachment and an unrescinded contract of bailment, even though the debtor may, at the time, be in the possession of the property, he can not acquire a lien by attaching it.' In Maine such a valid ex- isting bailment will prevent a second attachment, even though the second attaching officer does not know of the first attach - 1. Butterfield v. Clemence, 10 Cush. Chadbourne v. Sumner, 16 N. H. 129. (Mass.) 269. 4. Bagley v. White, 4 Pick. (Mass.) 2. See ante, §§ 201, 207. 395. 3. Pomeroy v. Kingsley, 1 Tyier 5. Chadbourne v. Sumner, 16 N. H. (Vt.) 294 ; Bruce v. Holden, 21 Pick. 129. (Mass.) 187; Adler v. Eoth, 2 Mc- 6. Dunklee v. Fales, 5 N. H. 527. Crary 445 ; Gower v. Stephens, 19 Me. 7. Young v. Walker, 12 N. H. 502. «2; Odiome v. Colley, 2 N. H. 66; ^ 261 ACTION FOR INTERFERENCE WITH POSSESSION. 497 ment.' Where, however, the officer finds the goods in a store where he can see them and take them, but he merely declares his intention to attach, locks the store and takes the key with him, leaving the goods in the store, they can not legally be at- tached by another officer, if these facts are known to him, or to the second attaching creditor.' Where the delay in remov- ing property is not unreasonable, and can be accounted for by the state of the property, a second officer can not attach them; as, for example, the delay in removing growing crops,^or an article in the course of being manufactured, or the like.' When judgment has been rendered in favor of the plaintiff in attachment and the statutory time for levying an execution has transpired, without the goods having been taken on such execution, the attachment lien is lost and the goods may be seized by another officer; even by a deputy of the sheriff who made the first attachment.* § 261. Action for interference with officer's possession.— Since the attachment of personal property gives the attaching officer a special property in it and the right to its custody and possession, it follows as a logical sequence that the right of ac- tion for any injury done to it is in the officer f for in any term- ination of the case he is accountable for the property either to 1. Brown v. Crockett, 22 Me. 537. for in such case the officer having A writ of replevin will not, how- made a wrongful attachment, has ever, lie against a second attaching acquired no right of possession. Car- officer by the debtor. Such action roll v. Frank, 28 Mo. App. 69. should be brought by the officer. In a state where the traffic in Brown v. Crockett, 22 Me. 537. liquors is prohibited by the statute 2. Denny ». Warren, 16 Mass. 420; and where in such state an officer Gordon v. Jenney, 16 Mass. 465; holding liquors on attachment JSTewton v. Adams, 4 Vt. 437. acquires no special property or right 3. Roberts v. Scales 1 Ired. (N. C.) of possession in them, he can main- 33 tain no action for his possession, even 4. Warren v. Leland, 9 Mass. 265. though the party taking them has no 5. It will be readily apparent that right or authority so to do. Nichols an action will lie against any one ex- v. Valentine, 36 Me. 322. As to cept the true owner when such owner levying attachments on spirituous is not the defendant in attachment, liquors, see ante. Att. 32 498 POSSESSION OF ATTACHED PROPERTY. § 261 the creditor or the debtor. His right over the property at- tached is independent of both the creditor and the debtor. In a given event he is responsible to the debtor, and in another event he is responsible to the creditor ; hence his right of ac- tion exists so long as the special property continues in him and no longer.^ He can maintain an action for any interference with it so long as he continues, either liable to the attaching creditor for its application to the satisfaction of the forthcom- ing execution ; or to the owner for its return upon the dissolu- tion of the attachment, but no longer.^ If he is accountable to neither he can not recover in his action. And this may happen through operation of law.' The officer may have an action^ even against the original owner, if the latter remove and convert the attached property.* And no irregularity, nor informality in the process of attachment, nor in the affidavit on which it is issued, will prevail as a defense in a suit brought by such officer after he has levied upon the goods. ^ Nor will the fact that he, in his return, described the property as lying in A when it w^as really in B.® For example, the officer may have an action against one who harvests an attached crop when the same was left to ripen. Constructive possession by the officer is all that is required by the statute.' The officer alone can maintain such action, hence if goods attached by a sheriff are replevied by a coroner, the creditor in the original suit can not maintain an action against the coro- 1. Braley v. French, 28 Vt, 546; seized. Wall v. Pulliman, 5 Heisk. Collins V. Smith, 16 Vt. 9; Foulks v. (Tenn.) 365. Pegg, 6 Nev. 136; Lathroi^ v. Blake, 4. Smart v. Batchelder, 57 N. H. 23 N. H.. 46. 140. 2. Robert v. Carpenter, 53 Vt. 678. 5. Marshall u. Marshall, 2 Honst. Collins V. Smith, 16 Vt. 9. (Del.) 125. 3. Dayton v. Merritt, 33 Conn. 184 ; Nor in the docketing of the suit be- Hotchkiss V. McVickar, 12 Johns (N. fore a justice of the peace. Marshall Y.) 403. V. Marshall, 2 Houst. (Del.) 125. As where slaves were emancipated 6. Smart v. Batcheidor, 57 N. H. during the pendency of the attach- 140. ment suit on which they had been 7. Grover v. Buck, 34 Mich. 619. § 261 ACTION FOR INTERFERENCE WITH POSSESSION. 499 ner, for, as the sheriff had the special property in the goods, he alone can maintain the action against the coroner.* If one deputy sheriff attaches goods, and another deputy of the same sheriff attaches and takes the same goods out of his possession by virtue of the second writ, the first attaching dep- uty may have an action of trespass vi et armis against the sher- iff himself, for although the two deputies are servants of the same master, they act independently of each other. ^ The form of the action which the officer may have against any one who violates his possession or that of his servant or bailee, may be either replevin, trespass or trover.' Even though he may have removed the goods out of the sta'te, and they have there been taken from him or his bailee.* And even though his bailee gave the defendant permission to take the goods.* Proof of having made seizure of the goods under an attach- ment is sufficient to sustain his action, without the necessity of producing the judgment,® Although the Judgment in the at- tachment suit is admissible to show the amount of the plaint- iff's lien, even though such judgment be not rendered until 1. Ladd V. Northj 2 Mass. 514, is considered in law to be the act of Nor can a creditor join with the the sheriff himself, and he may be officer in an action of trover for the sued for it in trover or trespass, or in conversion of property by some third any other form of action suited to the person. Schaeffer v, Marienthal, 17 nature of the case. Johnson v. Edson, Ohio State 183o A judgment of the 2 Aiken (Vt.) 299. court finding the right of possession 3. Lathrop v. Blake, 23 N. H. 46; in two defendants may be rebutted by Badlam v. Tucker, 1 Pick. (Mass.) showing exclusive possession in one 389; Ludden «. Leavitt, 9 Mass. 104; of them. Schaeffer v. Marienthal, 17 Perley v. Foster, supra^ Warren v. Ohio State 183. Leland, 9 Mass. 265 ; Gates v. Gates, 2. Walker v. Foxcroft, 2 Me. 270. 15 Mass. 310 ; Gibbs v. Chase, 10 Mass. Disputes between deputies of the 125 ; Whittier v. Smith, 11 Mass. 211 ; same sheriff must be settled by the Smiths. Wadleigh, 18 Me. 95; Barker sheriff, if the dispute arose over prop- v^ Miller, 6 Johns. (N. Y.) 195 ; Wil- erty attached by each of them. Perley braham «. Snow, 2 Saund. (Eng. K. V. Foster, 9 Mass. 112. See also Vin- B.) 47a. ton V. Bradford, 13 Mass. 114 ; Thomp- 4. Brownell v. Manchester, 1 Pick, son V. Marsh, 14 Mass. 269. (Mass.) 232. The sheriff is answerable for all 5. Sinclair v. Tarbox, 2 N, H. 135. acts of his deputy, done under color 6. Barker v. Miller, 6 Johns (N. of his office. The act of the deputy Y.) 195. 500 POSSESSION OF ATTACHED PROPERTY. § 262 after the trespass or conversion.* As against a stranger for a tortious taking from the possession of the oflficer it is not neces- sary for him to prove a forcible taking to maintain an action of trespass de bonis asportatis,^ And an action by such officer against a subsequent attaching creditor for taking the same property may be maintained, although no demand for it has been made of the defendant upon the execution issued in the first suit previous to the commencement of the action of tres- pass.' If the attached goods be wrongfully taken away from an officer and he should die before there is an action brought, an action of trover may be maintained by his legal representatives for the benefit of whomsoever it may concern.* § 262. Officer's disposition of perishable property. — When the officer levies upon j^roj^erty of a perishable nature and such as will deteriorate in value by being kept in his possession until the determination of the suit, there will be found, in most states, some statutory provision enabling the court to order a sale of such personal property by the officer who made the levy, and prescribing that the proceeds of such sale be kept in the possession of such officer, or by him paid into court, to await the determination of the attachment proceedings. ' The author- ity to sell ''perishable'^ goods w^hich have been seized on at- tachment is, in some states, limited to such goods as are liable to immediate decay or to perish before the time arrives at which they may be sold in the regular course of the proceedings.^ And not to property which, by extraordinary exposure, may be liable to loss or destruction, if so situated that its safety can be provided for by the attaching officer.' But in other states, the statutory power to sell extends to all chattels liable to depreciate 1. Grover v. Buck, 34 Mich. 519. bind the owner. Kirby v. Cold well, 2. Gibbs V. Chase, 10 Mass. 125. 26 Miss. 103. 3. Mills V. Camp, 14 Conn. 219. 6. Henisler v. Friedman, 5 Pa. L. 4. Hall V. Walbridge, 2 Aik. (Vt.) J. 147; Newman v. Kane, 9 Nev. 234. 215; Badlam v. Tucker, 1 Pick. 389. Hay is not. 5. The practitioner will consult his 7. Oneida Nat. Bank v. Paldi, 2 controlling statute, which must be Mich. (N. P.) 221. strictly followed, or such sale will not § 262 officer's disposition of perishable property. 501 in value by keeping, or which can not be kept without great and disproportionate expense.* For to keep property until it deteriorates in value is to do an injury to all concerned and is certainly not the policy of the law.^ A statute authorizing a sale of perishable articles applies (at least in North Carolina) to cases of original attachment and not to those against ves- sels, the attachment of which is authorized by different statute; therefore a sale by the sheriff of a vessel so levied upon is void and does not discontinue the suit.* Among the articles which have been deemed to be perishable are the following: A horse and chaise in New Jersey;* a shal- lop in Pennsylvania;'* household effects and live stock in Penn- sylvania;® live animals, fish, fruit, etc., in New York.' And goods used by fasionable tailors, the styles in which change every season and which are liable to become hard and unsuita- ble for use and moth-eaten and injured by dust and dirt.* The object of the statute in giving to the court the power to order the sale of perishable property is to confide a power to be used for the benefit of both parties, and the sheriff to whom the order is issued is not under the control of either the plaint- iff or defendant, and neither can stop such sale. The object of the sale is to change the form of the property for the benefit of both, and the proceeds of the sale are to be retained by the ofiicer to be disposed of as the property itself would have been 1. Crocker v. Baker, (Mass.) 18 count of his apprehension that the Pick. 407. cattle will not be supported, he is an- 2. Schumann V.Davis, 13 N.Y.S. 575, swerable to the plaintiff. Sewall v. 19 Civil Proc. 348. Mattoon, 9 Mass. 535. The general 3. Bryan V. The Enterprise Steamer, rule is that the officer is not to con- 8 Jones (N. C.) L. 260. sider the element of expense in keep- 4. Anon. 18 N. J. L. (2 Harr.) 26. ing or preserving the property . Sewall 6. Oniel v. Chew, Dall. (Pa.) 379. v. Mattoon, 9 Mass. 535; Newman v, 6. Baker v. Baker, (Pa. Com. PI.) Kane, 9 Nev. 234; Dean v. Bailey, 12 28 W. N. C. 300. Vt. 142. It has been held in Massachusetts 7. Zimmerman v. Fischer, 13 N. Y. that when an officer attaches the Civ. Proc. 224. debtor's cattle that the debtor is 8. Schumann v. [Davis, 13 N. Y. S. obliged to support them or be respon- 575, 19 Civ. Pro. 348, 26 Abb. N. C. sible if they perish. However, if the 125, disapproving Fisk v. Spring, 32 officer forsake his attachment on ac- N. Y. Supr. Ct. 367. 502 POSSESSION OF ATTACHED PROPERTY, § 262 had it remained in specie. If the officer neglects to sell at the time ordered he does so at his own peril.* And when by process of law attached property becomes changed into money in theofficer's hands, and he places it so that it accumulates interest, the in- terest will be treated as an accretion to the money and will be- long to the party entitled to the money. ^ A sale of attached property should never be made unless such property is in the undisputed possession of the officer. No proper order of sale can be made after the attached prop- erty has been replevied.' Since an attachment proceeding does not abate at the death of the plaintiff, but continues as a pending cause, an order of sale of perishable property may be made after the plaintiff's death and before the expiration of the time in which the de- fendant is permitted to show cause why the action shall not be revived.* Parol proof that by reason of the perishable nature of the property, or the cost of keeping it, the sale would be for the benefit of both parties, is generally sufficient to procure the order. The correctness of an order of sale will be presumed in the absence of anything to the contrary." The owner of the property must have such notice of the sale as the statute prescribes.® If the statute require that the officer give the owner of the property written notice of the application for an order to sell, and verbal notice only is given to him of such application, his being present at the appraisal and sale 1. Oeters v. Aehle, 31 Mo. 380; 3. Weathers v. Mudd, 12 B. Mon. State V. Judge Civ. Dist. Ct., 44 La. (Ky.) 112. Ann. 87, 10 So. Rep. 405. 4. Buller ». Woods, 43 Mo. App. The proceeds becoming the at- 494. tached property, the defendant may 5. Dunn v. Salter, 1 Duv. (Ky.) obtain it by giving the usual delivery 342. bond required in other cases. State 6. There is, however, no rule of law V. Judge Civ. Dist. Ct., 44 La. Ann. which would compel the real owner of 87, 10 So. Rep. 405. attached property on notice of the at- 2. Richmond v. Collamer, 38 Vt. tachment, to intervene and defend 68. Same principle in Newman v. pro interresse suo on pain of forfeiting Kane, 9 Nev. 234. his rights of property or'of action. Mar gee V. Beirne, 39 Pa. St. 50. § 262 officer's disposition of perishable property. 503 without objecting thereto is a waiver^of such irregularity, and good title will pass to the purchaser.' The title acquired by the purchaser of perishable property properly sold is good as against the world.^ For when the property has been proven to be perishable, the order of sale properly made is indefeasible and unquestionable, whoever the former owner may have been, because the order of sale is a proceeding in rem' The title the purchaser gets at a sale ot perishable property on an order of the court in compliance with the statute is superior to that of a landlord s lien, even though the landlord's lien was prior to that of the attachment The purchaser's title is absolute, even though the goods^sold were not the property of the defendant in the attachment When perishable property is sold by order of court before judgment, it is not essential to the validity of the sale or the preservation of the judgment that a return of the sale should be made on the original writ.« But such report must be made as the statute requires. In the event of the quashing of the attachment proceedings, the proceeds of the sale of the perishable property should be restored to the defendant, for although a judgment for the plaintiff may have been rendered in the main action, the court has no right to direct the proceedings of the sale to be paid over to the plaintiff ;' nor has the plaintiff a lien upon it. The defendant may claim the money as his own.* 1 Walker v Wilmarth, 37 Vt. 289. of such goods for their value, it seems 2 Young .. Kellar, 94 Mo. 581. the defendant may file a niotion to S' Megee .. Beirne, 39 Pa. St. 50. have such amount repaid to hini o t But the sheriff, as defendant, is an of the proceeds of the sale; but if h s acUon of trespass by the real owner motion fails to show what the goods San not justify the taking of goods on in question sold for, a demurrer there- he ground that by this peculiar law, to will be sustained^ Meyer . Shgh, the title of his vendee was made ^^ ^ex. 336, 16 S^W Rep 1022 valid. Megee .. Beirne, 39 Pa. St. 50. 6. Eastman . Eveleth 4 Met. 37^ 4. Betterton .. Eppstein, 14 S. W. 7. Petty .. Lang, 81 Tex. 238, 16 S. Ren 861 78 Tex 443 ^^ • ^^P- ^^^• •^ Meyer ^.Sligh, 81 Tex. 336,16 8. 8. Goldsmith «. Stetson, 39 Ala. -ITT- T>a-r\ 102'^ 183. if in such^a case the defendant in He is entitled to the proceeds of the attachment accounts to the true owner B^\e, less the expenses thereof. He is 504 POSSESSION OF ATTACHED PROPERTY. § 263 § 263. Expenses incurred in keeping tlie property— Com- pensation of tlie officer.— When an officer, while holding and caring for attached property, expends money he must be reim- bursed.^ And if he is charged with waste, he can show that what is alleged to be waste is the result of paying the expenses of keeping the goods.* In fact, under one statute, it is declared that when a sheriff attaches personal property he is not allowed to consider the element of expense m its keeping or preserva- tion, but must keep it ready, subject to the judgment of the court.' The expenses necessarily incurred in keeping the prop- erty together with the legal fees of the officer are to be consid- ered as costs of the suit.* If the plaintiff recover in his suit and the property be ultimately sold by the officer under execu- tion, he may deduct these charges, if allowed, out of the pro- ceeds and apply the remainder on the execution. If the judg- ment goes for the defendant he may look to the plaintiff for reimbursement. If the debtor settles the debt with the cred- itor so that no execution comes into the hands of the officer on which he may make a sale and thereby reimburses himself for costs, charges and expenses incurred by the care of the prop- erty in his hands, he nevertheless has a lien upon such prop- erty and may sustain an action to enforce the same by a sale of the property.^ And in Vermont the charges become, by oper- ration of law, a lien upon the property when it is sold upon the plaintiff's execution.® Where property seized on attachment has been taken out of entitled to no more, for the sale was (N. Y.) Pr. 41 ; Hall v. United States as much for his interest as for that of Reflector Co., 66 How (N. Y.) Pr. 31. the creditor, and if he had not wanted 6. McNeil v. Bean 32 Vt. 429. But it so sold he could have procured its not when the attachment is dissolved, release by giving a release bond. Felker v. Emerson, 17 Vt. 101. Pollard V. Baker, 101 Mass. 259. A sheriff who pays the debts con- 1. Hannessc. Smith,21ISr. J. L.495, tracted for the supplies of a vessel 2. Twombly «. Hunnwell, 2 Me. which he has attached and which ves- 221. sel he afterwards permits to get into 3. Newman v. Kane, 9 Nev. 234. the hands of third persons, does not, 4. McNeil v. Bean, 32 Vt. 429. by such payment, acquire a lien on 5. City Bank t?. Tucker, 7 Colo. 220; the vessel as against a subsequent Dean u. Bailey, 12 Vt. 142; Bowe v. purchaser without notice. The Schoon- United States Reflector Co., 66 How er Superior, 5 Saw. (U. S.) 346. § 263 EXPENSES INCURRED IN KEEPING PROPERTY. 505 the hand's of the officer, he is entitled to a reasonable sum for the expense of regaining possession; such retaking is incident to the performance of his duty and he may insist upon being paid if he regained possession in a lawful manner.* In general no compensation is provided for the sheriff, by the statute, for his mere personal care of attached property ex- cept fees and his salary; and where there is no statutory pro- vision, any charge by him made, even though sanctioned by the plaintiff's attorney, is illegal and extortionate.' It seems that the officer may move the court for the allowance of extra compensation." Neither can the officer, when the law fixes the sheriff's compensation, make a valid agreement with the debtor for any additional compensation. It is contrary to the policy of the law.* The compensation allowed to the officer for the care of property in^New York, is termed poundage, but he is not entitled to poundage if he has not attached any property which he can sell by virtue of the attachment.' A sheriff 1. Rhoads v. Woods, 41 Barb. (N. Y.) 471. If the attaching officer, by the direc- tion of the plaintiff, stores goods and makes himself responsible for the payment of a bill for storage, he may recover the same from the attaching creditor as an item of charge in the account annexed. If the plaintiff's attorney advises such storage, the at- torney is responsible for the charges. Tarbell v. Dickinson, 3 Cush. (Mass.) 345. But under the California code, where an attorney has no authority to bind the client, it is not competent for the officer, in an action to recover fees and expenses, to introduce testimony showing that he kept a store (in which goods were attached) running by the instructions of the creditor's attorney and thereby incurred additional ex- penses. Alexander v. Deneveaux, 63 Cal. 663, 59 Cal. 476. While property attached is to be kept by the officer at the expense of the debtor, Dean v. Bailey, 12 Vt. 142, Sewell v. Mattoon, 9 Mass. 535, yet even though no agreement has been made with the plaintiff, who has attached animals of the debtor, the officer may recover from the plaintiff the expenses incurred in supporting the animals, and this although the judgment be rendered against the plaintiff. Phelps v. Campbell, 1 Pick. (Mass.) 59. 2. King V. Shepherd, 68 Iowa 215. 3. Fletcher t). Aldrich Circuit Judge, 81 Mich. 186, 45 N. W. Rep. 641. 4. Burk V. Webb, 32 Mich. 173. 5.Calhounv.Lee,29How.(N.Y.)Pr.l„ In the city and county of New York the officer is allowed as compensation on the settlement or withdrawal of actions of attachment an amount equal to the rate of poundage on an execu- tion. Bartlett v. Jessup, 18 Abb. (N. 506 POSSESSION OF ATTACHED PROPERTY. § 2G3 who has taken property into his possession by attachment is not entitled to poundage in case of a subsequent settlement of plaintiff's claim before any sale of the property by the sheriff. Poundage is only allowed in case of a sale by virtue of the attachment before judgment; and then only in case a settlement has been had, or a judgment recovered and collected, in whole or in part; and in that case the poundage is to be estimated on the amount collected, or "the amount at which settlement is made."^ Where, after the officer has attached a flock of sheep, the debtor was adjudged a bankrupt upon his own petition, and the officer was compelled to keep possession of the sheep until he could legally deliver them to the assignee, it was held that such officer was entitled to a compensation from the assignee for keeping such sheep until claimed and received by the as- signee.^ But where an officer attaches a horse and uses the same sufficiently for the keeping, he can not recover from the attaching creditor for such keeping.^ Neither can an officer, who acquires illegal possession of property under color of an Y.)Pr. 448; Mullerr. Santler, 18 Abb, getting possession of the property. (N. Y.) Pr. 450, 28 How. (N. Y.) Pr, Alburtis v. Dudley, 12 Abb. (N. Y.) 87; JelUnghaus v. Scheidt, 18 Abb, Pr. 361, 21 How. (N. Y.) Pr. 456. (N. Y.) Pr. 452. The officer is not entitled to pound- I.German American Bank -i?. Morris age upon the money and bank notes Eun Coal Co., 68 N. Y. 585; Kidlon of the defendant when not taken into V. Flanigan, 19 N, Y, Supreme Court his actual custody and he is not 115. chargeable therefor. Ringgold v. In such a case he can not, as a Lewis, 3 Cranch C. C. 367. matter of right, tax more than eighty- In Tennessee where the statute pro- two cents. Alburtisw.Dudley, 12 Abb. vides that if the sheriff levies an at- (N. Y.) Pr. 361, 21 How. (N. Y.) Pr. tachment and the amount shall be 456. satisfactorily settled, he shall be en- Where personal property is attached titled to the same commissions as in five dollars for levying,and two dollars cases of executions. The sheriff can per day for keeper's fees, is ample claim commissions only upon the compensation for the sheriff's service, amount realized by payment from the when nothing appears to show that defendant after the levy. Shaw v. the sheriff was put to any trouble or Armstrong, 2 Heisk. (Tenn.) 420. expense, further than sending a sub- 2. Zeiber v. Hill, 1 Sawyer (U. S.) altern to the store to take and remain 268. in charge; and it not appearing that 3. Dean v. Bailey, 12 Vt. 142. there was any diflSculty in finding or § 264 officer's power to appoint an agent. 507 attachment, charge the defendant in the attachment for keep- ing the property/ Nor can he retain property which he has no right to attach for the purpose of a reimbursement of money which he has paid to discharge a prior lien upon it.^ The permanent stationing of the keeper over property, which may be removed, is not warranted by hiw, and the charge therefor can not be legally included in the taxable costs of the action.^ Part II. Possession by Agent of Sheriff. § 264. Officer's power to appoint an agent. — It is a well established principle of the law of attachment that in order to maintain a lien created by an attachment of personal property, the officer must, in some form, by himself or another, retain the custody of the property ; for if possession is abandoned the attachment will be dissolved and another attachment by another officer will be valid.* And such possession must be visible, continuous and conclusive,® as has been hereinbefore particu- larly shown. This duty of safely keeping possession of the attached personal property to satisfy the execution which may follow, the officer may perform by himself, or by the agency of a keeper appointed for that purpose. * The officer may make such arrangement, upon his own responsibility, as he may think proper. And if he appoint an unfaithful servant, or entrust it to an irresponsible bailee, so that it is lost through the negli- gence or infidelity of the keeper or the insufficiency of the re- ceiptor, such officer will be responsible for the value of the property.' In quite a number of states and by long practice, it has be- come a well established law that the officer may give the imme- 1. Gardner v. Hust, 2 Rich. (S. C.) 176 ; Chadbourne v. Sumner, 16 N. H. 601. 129. 2. Morton v. Hodgdon, 32 Me. 127. 5. Fitch v. Rogers, 7 Vt. 403. 3. Cutter v. Howe, 122 Mass. 541. 6. Gower v. Stevens,19Me.92; Don- As to " Keeper's Fees," generally, see ham v. Wild, 19 Pick. (Mass.) 520. post, § 285. 7. Blake v. Kimball, 106 Mass. 115. 4. Sanderson v. Edwards, 16 Pick. Further as to "Liabihty of the Offi- ,* . Wa^ -e.h IS own selection. Frazier v. Willcox, 4 Me. 95. bee post, s -/•*, ''tnlti.ay then a. we,, retain pes- ''tlvlLhouse , BircU7 Me. 326; session by a keeper or overseer, for Waterman .. Treat, 49 Me. 309^ »hose acts l>e is responsiMe as by his 5, Perry •• Somerby, 57 Me. 552 depaties. Myers ..Myers, 8 La. Ann. See >.».._^5 269.^ «„ sheriff attach 369. And even though the property at- tached be a plantation it remains se- '" And even though the property at- m^ney' 'and ,eav°e it in "- hands o^ a ,.hed he a nlantation it remains se- third party, who gives to the shentt a 510 POSSESSION OF ATTACHED PROPERTY. § 265 interest acquired by the receiptor himself. Some hold that he has a sufficient interest in the property to enable him as against a wrong-doer to maintain either trespass or trover.' While a greater number hold that the special property remains alone in the officer who made the attachment and that the receiptor is merely the servant of the attaching officer and that he has no interest or title in the property whatever and can bring no ac- tion against any one who disturbs him in his possession and that the action must be brought by the officer himself.^ Neither can a receiptor maintain an action against the defendant in at- tachment for an amount such receiptor has paid out of property attached to the attaching creditor.* The authority for safe keeping is subordinate to that of the officer and he can neither sell nor loan the goods.* He may return the possession of the property confided to his care to the officer if he will accept of it/ And the officer may demand such possession of the re- ceiptor whenever he may see fit.® The nature of the bailment of attached property seems to be such that when a delivery is made to a receiptor, the lien of the attaching officer is so far relinquished that if the receiptor sell and deliver the same to a bona fide purchaser with the as- sent of the owner, the title will pass, notwithstanding the at- tachmentc' But this will not affect the liability of the receiptor on his contract with the officer.* receipt for it, such third party is con- back v. Jerome^ 7 Cow. (N. Y.) 294; stituted the keeper of the money Eastman v Avery, 23 Me. 248. seized, and the sheriff himself, to all One case didhold that trover should intents and purposes, is in the legal be maintained by him who had pos- possession thereof. Watkins v. Caw- session, but that replevin could only thon, 38 La. Ann. 1194. be maintained by him who had a 1. Burk V, "Webb, 32 Mich. 173; property therein, either general or Poole V. Symonds, 1 N. H. 289; special. Waterman v. Robinson, 5 Thayer u. Hutchinson, 13 Vt. 504; Mass. 303. Odiorne v. Colley, 2 N. H. 66; Bur- 3. Woodward v, Munson, 126 Mass. rows V, Stoddard, 3 Conn. 160. 102. 2. WaiTen v. Leland, 9 Mass. 265; 4. Odiorne v. Colley, 2 N. H. 66. Perley v, Foster, 9 Mass. 112 ° Ludden 5. Carr i\ Farley, 12 Me. S28, V. Leavitt, 9 Mass. 104 ; Common- 6. Woodburn v, Munson, 126 Mass. wealth V. Morse, 14 Mass. 217 ; Norton 102. See 2:>ost, § 273. V. People, 8 Cow. (N. Y.) 137 ; Dillen= 7= Clark v, ]\Iorse, 10 N. H. 236. 8. See posi, § 274. § 266 WHO MAY BECOME A RECEIPTOR OR BAILEE. 511 § 266. Who may become a receiptor or bailee. — The bail- ment of attached property not being an official act, leaves the officer entirel}'' to his own discretion in delivering the attached property into the hands of third persons. The sheriff's receipt is a contract for his own private security.* And as the officer himself is held responsible for the safe custody of the attached property he will, as a matter of self-protection, see that such, receiptor is a responsible person. The legal possession being in the officer, he may deliver it to another for safe keeping, who thereby has the legal possession, the invasion oi which is trespass. There seems to be no objection to making the at- taching creditor a keeper of the property if he is a responsible man and willing to undertake the trust. ^ And no fraud will be presumed thereby.^ Such plaintiff, however, holds posses- sion as a servant of the officer,* and not in his own right, for he has no right to control the possession of attached property during the pendency of the attachment.^ The officer can, if he choose, deliver the property attached for safe keeping, and take its value in money as security during the pendency of the suit; or he may surrender the property which he has taken from the joint possession of two cotenants to either of them.® It is likewise competent for the attaching officer who seizes property in a warehouse to place the warehouseman as keeper or custodian of the property.' Furthermore, the attaching officer may allow the attached property to remain in the possession of the debtor himself or of his family or of his servant, provided such officer retains control of the property with power to retake it into his posses- sion, making such owner or other person his agent for retain- ing possession of the property. If he choose to assume such risk there is no rule of law to forbid it.*^ This may render the property liable to a second attachment. But when property 1. Clark V. Clough, 3 Greenl. (Me.) 5. See post, § 279. 357. 6. Gassett v. Sargeant, 26 Vt. 424. 2. TJtley v. Smith, 7 Vt. 154. 7. Trounstein v. Rosenham, 22 La. 3. Tomlinson v. Collins, 20 Conn. Ann. 525. 364. 8. See a7ite, § 251, and post, § 392. 4. See ante, § 265. 512 POSSESSION OF ATTACHED PROPERTY. §§267, 268 attached is receipted for and redelivered to the dehtor, the re- ceiptor is liable therefor to the officer, and the officer is bound, at his peril, to have the goods forthcoming according to the terms of the receipt. It makes no difference in this regard whether by the receipt and redelivery, the receiptor became bailee and servant of the officer, to keep the goods as in the custody of the law, or whether he became an original con- tractor.* The same bailee may act as the keeper of the attached prop- erty, both for the attaching officer and for a purchaser under the owner; and on such concurrent possession the priority of legal rights will obtain.^ § 267. Contents of the receipt.— The articles attached should be specified in the receipt so that there can be no misapprehen- sion or misunderstanding in regard thereto, and the return of the ofiicer should specify the same. But when this is omitted it will not render the officer liable for anything more than nominal damages, unless special damages be shown.' When there is a clerical error (misprision) in the form of a receipt, such mistake in name is not such a variance as to vitiate the receipt, the court will correct it by construction, when it is apparent on the face of the instrument that the error exists and in what manner it should be corrected to carry out the intentions of the parties.* § 268. Effect of mentioning in the receipt the value of the property attached.— The valuation named in the receipt given for attached property has ever been justly considered as conclus- 1. Wentworth v. Leonard, 4 Cush. four hundred dollars, on demand and (Mass.) 414. See further as to "Lia- interest, said note being security to bility of Eeceiptor," post, § 274. said Pettengill for a writ, Calvin Bruce 2. Wheeler v. Nichols, 32 Me. 233. v. Tenny and Gould, which is this Further as to the sale of attached day sued," and duly signed, was held property, when in possession of the to be a receipt, on which a party giv- owner, see pose. ing it could be held. Bruce v. Petten- 3. Bruce v, Pettengill, 12 N. H. 341. gill, 12 N. H. 341. The receipt reading, "October 19, 4. Marion v. Faxon, 20 Conn. 486. 1836. Value received, we promise to Same principle in Richmond v. Wood= pay John Pettengill, deputy sheriff, ard, 32 Vt. 833. ^ 268 EFFECT OF MENTIONING VALUE IN RECEIPT. 513 ive upon the parties in an action upon such contract.^ It is con- sidered as a stipulation of the extent of such receipt as se- curity.^ The receiptor is, by stipulating as to the value of the property receipted for, estopped from denying either the attach- ment,' or the value of the property attached/ And this, even though the property receipted for had no existence at the time the receipt was given/ The valuation named in the receipt is conclusive as between the officer and the receiptor, whether such valuation be more or less than the valuation of the prop- erty attached.® Even in an action upon a receipt to pay a stip- ulated sum of money, or deliver the property on demand (or if no demand was made, then thirty days after the rendition of judgment), it was held that the fact that the officer attached property greater in value than he was directed in the writ to at- tach could not be shown.' When a portion of the property attached and receipted for has been taken from the possession of the receiptor in such manner as to discharge his liability to that extent, and the value of the property receipted for is expressed in the receipt as an entire sum, and an action be brought upon the receipt, the damages are to be determined by assuming the value of the whole property receipted to be the sum specified in the receipt, 1. Drown V.Smith, 3 N.H. 299; Par- action by an officer against the re- sons V. Strong, 13 Vt. 235. ceiptor upon the receipt as toithe value 2. Jones v. Gilbert, 13 Conn. 507 ; of the property attached. Parsons v. Stevens v. Stevens, 39 Conn. 474. Strong, 13 Yt. 235. 3. But see post, § 283. For example, if a receiptor promises 4. Anthony v. Comstock, 1 R. I. 454 ; the officer that he will redeliver the Enscoe v. Dunn, 44 Conn. 93 ; Easton articles, or pay $500, stating in writing V. Goodwin, 22 Minn. 426. that the articles are of that value, he 5. Stevens v. Stevens, 39 Conn. 474; will not be permitted to prove that Jones V. Gilbert, 13 Conn. 507. the articles were overvalued, nor that This holding is on account of the such articles had fallen in price ; nor officer's responsibility to the creditor, that, on the day of the demand, he Jones V. Gilbert, 13 Conn. 507. offered other articles of the same kind, 6. Anthony r. Comstock, 1 R.I. 454; of as great value as those attached. Spear V. Hill, 52 N. H. 323; Parsons Smith v. Mitchell, 31 Me. 287. V. Strong, 13 Vt. 235. 7. Hunter v. Peaks, 74 Me. 363. Parol evidence is inadmissible in an Att. 33 514 POSSESSION OF ATTACHED PROPERTY. § 269 and then ascertaining the Just proportion, which the property- retained by the receiptor would bear to the propo^ty tot which he gave the receipt/ § 269. Abandonment by bailee dissolves attachment — What is such an abandonment. — What has been hereinbefore said regarding the abandonment of personal property is also applicable in this connection.* The possession ox the receiptor being the possession of the officer, an abandonment by the re- ceiptor will be an abandonment by the officer If the receiptor allows the goods to come into the hands of the attachment de- fendant and thereby loses control over them it wiB constitute an abandonment, and the attachment will be ipso facto dis- solved.^ But every possession by the debtor, with permission of the receiptor, is not an abandonmentc The bailee may re- tain his possession bona fide and from motives oi humanity permit the defendant to use attached articles when the same will not be injured by such usage and the attachment will not be thereby dissolved,'^ In aB such cases the receiptor is the servant or keeper for the officer and the debtor is the same for the receiptor.® And the receiptor must retain control of such property with power to retake it into his possession ** If the receiptor permits the defendant to hold and use the property as owner; the attachment is regarded as being so far dissolved that the property may be attached by another officer, who has no knowledge that a prior attachment is still subsisting,'^ Fur- 1. Allen V. Carty, 19 Vt. 65. See 6„ Weston Vo Bone, 25 Me. 176, and post, §§ 274-283, as to action on the ante, § 265„ receipt, measure of damages, and 7 Whitney ». FarwelL 10 N= He Oj proof of set-off in defense. Bicknell v. Hill, 33 Me, 297 j Beach 2. See ante, § 256. ©= Abbott, Q Vt, 586, Sea further as 3. Dunklee v. Fales, 5 N. H. 527 5 to "Abandonment," ante, §256. Hill w. Wiggin, 31 N. H. 292° Baker Where the bailee abandoned prop- V. Warren, 6 Gray (Mass.) 527o erty left in his charge^ for a period of 4. Train v. Wellington, 12 Mass. two weeks, the attachment was con- 495 ; Baldwin v. Jackson, 12 Mass sidered to be releasedo in such case 131 ; Farrington v. Edgerly, 13 Allen ifc was said aot to be for the benefit of (Mass.) 453; Young v. Walker, 12 N„ the defendant that the attachment was H. 502. dissolved, but for the benefit of third 5. Small V. Hutchins, 19 Me. 255. parties, whose rights should be guard- § 269 ABANDOFMliiSiT BY BAILEE DISSOLVES ATTACHMENT. 515 thermore,, there is nothing to prevent the receiptor from deliv- ering tho goods t:> the owner of them when the defendant has no title thereto; for the principle that goods attached are in the custody of law does not apply in such a case/ When a receiptor, for attached goods, delivers them to or allows them to remain with the attachment debtor, even though he has not lost control over them, such debtor may sell them and the general property will pass to the purchaser.' If such possession by the owner was as a bailee and not as owner, so that there is no abandonment, such sale will be subject to the attachment lien.' When the lien still subsists, the debtor can make no disposition of the attached property to the pre- judice of the rights of the attaching creditor or officer.* But the general rule is that the delivery of the attached goods by the receiptor to the defendant legally operates as a discharge of the attachment and terminates the attaching officer's special property in them.^ If, however, only a portion of such goods is sold, the unsold portion is still the special property of the attaching officer.® Where a mortgagee, even though he is a nominal vendee under a bill of sale, receipts for the same to an attaching offi- cer, the attaching creditor's lien becomes superior thereby to that of the keeper as mortgagee, even though he was in posses- sion at the time the attachment was made; and he can not defeat the attachmsnt lien by a sale of the interest he had acquired by reason of the bill of sale. By accepting the trust as keeper he is estopped from denying the validity of the attachment lien.' When the attaching officer has delivered the goods attached ed with great strictness. Russell v. 4o Woodman v. Trafton, 7 Me. 178. Major, 29 Mo. App. 167. 5. Robinson v. Mansfield, 13 Pick. I.Rogers v. Weir, 34 N. Y. 463; (Mass.) 139; Bridge v. Wyman, 14 Robinson v. Mansfield, 13 Pick. Mass. 190; Dunklee v. Fales, 5 N. H. (Mass.) 139. 527 ; Pond v. Baker, 58 Vt. 293. 2. Denny u.Willard, 11 Pick. (Mass.) But as to the "Liability of the Re- 519, ceiptor" see post, §§ 274-284. 3. Denny u.Willard, 11 Pick. (Mass.) 6. Rowe v. Page, 54 N. H. 190. 519. 7. Moresi v. Swift, 15 Nev. 215. 516 POSSESSION OF ATTACHED PROPERTY. § 270 to a bailee on a good receipt and such receiptor allows them to remain in the custody of the debtor, the officer may retake them from the debtor if such officer still has the writ in his posses- sion/ If a receiptor of attached property delivers it to a third per- son whose servant removes it to a distance and leaves it, tres- pass may be maintained against the servant, even though at the time he may have been ignorant of the sheriff's interest in the property.^ The special property of the attaching officer in the goods attached is not terminated by the goods being carried into an adjoining state for safe keeping and there given into the hands of a bailee, taking his receipt for the same/ § 270. Receiptor not under control of creditOFc — ^The receipt taken by an officer for goods attached is a contract for his own private security.* As the bailee is selected by the officer and not by the creditor he becomes an agent of the officer and not of the creditor. The keeping of the property is a duty which the officer owes to the creditor and he may per.torm it person- ally or by his agent selected for that purpose/ The receiptor's agreement is not with the creditor^ and there is no privity be- tween them. The officer is the one who is liable to the cred- itor whether the receiptor be liable to him or not. The receipt Is for the protection of the officer and not for the protection of the creditor.^ It is the official duty of the officer^ he alone be- ing clothed with the requisite power, to retake the property at any time he deems it necessary for him to secure it.'^ The creditor has a right to suppose that the officer is the actual keeper at all times, and it is with that supposition that he gives his execution, when obtained, to the officer for him to levy it forthwith and proceed and sell according to law.* 1. Bend V. Padelford, 13 Mass. 394. 5. Gilbert v. Crandall, 34 Vt. 188; 2. Sinclair v. Tarbox, 2 N. H. 135. Rider v. Sheldon, 56 Vt. 459. 3. Brownell v. Manchester, 1 Pick. 6. Shepherds. Hall, 77 Me. 569. (Mass.) 232. 7= Gilbert v. Crandall, 34 Vt. 188; 4. Clark v. Clough, 3 Greenl. (Me.) Meshew v. Gould, 30 La. Ann. 163. 357. 8. Bliss v. Stevens, 4 Vt. 88. §§ 271, 272 CONTINUATION OF OFFICER'S LIABILITY. 517 It seems, however, that while the creditor has no right to control the receipt taken by the officer for attached goods, yet if the officer should place such receipt in the hands of the cred- itor's attorney to be prosecuted for his benefit, this is an equi- table assignment of such receipt.^ Furthermore, if the plaintiff's attorney instructed the officers to take the receipt of a certain individual for the goods attached, or approves the same after it is so taken, this is an adoption thereof by the creditor for his own benefit, and he acquires thereby an equitable interest founded on a sufficient consideration which has long been recognized and protected by the courts.^ But it has been held that, although the officers take a receipt on advice of the cred- itor, he is still liable to him for the misfeasance or negligence of the receiptor, but in such case he will be liable for no more than has actually been lost by such misfeasance or negligence.* § 271. Continuation of officer^s liability for acts of receiptor. — An officer who has attached property on a writ, and deliv- ered the same to a third person upon his own responsibility, is still liable to the parties, by virtue of the attachment^ for the safe keeping and legal disposition of such property." But a sheriff is not liable for goods receipted for by a deputy of his predecessor^ even though the same person be a deputy of his when the execution in the suit upon which the attachment was made was placed in his hands. ^ § 272. When liability of officer, who has delivered goods to a receiptor, ceases. — When an attaching officer accepts a re- ceipt or appoints a keeper at the request, by the advice, or with the consent of the plaintiff, he and not the officer is responsible for the sufficiency of the one or the fidelity of the other,® 1. Clark V. Clougb, 3 Me. (3 Greenl.) 3. Pierce v. Strickland, 2 Story, 292. 357. As to "Action on Receipt" see post, 2. Farnham ». Gilman, 24 Me„ 2o0. § 274. And the officer is discharged from 4, T'orrey v, Otis, 67 Me. 573. his liability to the plaintiff for not re= S, Tomlinson v, Collins, 20 Conn, taining possession. But this does iioi 364. release the receiptor. Farnham v. Gil- 6, Donham v. Wild, 19 Pick. 520. man, 24 Me. 250. See post § 272. Ac If the plaintiff gives his written ap- to "Action of Receipt" see post, § 274, proval of a receipt taken by the officer 518 POSSESSION DF ATTACHED PROPERTY. § 272 If an officer has been instructed by an attorney who has re- ceived a writ from his client to take such writ and levy it on certain property, and to take a receipt for it from a certain per- son, and the officer complies with these instructions, he will be relieved from liability to produce the property to be taken in execution,* and it has been further held, that the delivery of a receipt to the creditor's attorney, with his acceptance, releases the officer from responsibility,^ But it is also said that an of- ficer is not exonerated from an effort to find the goods held by a receiptor because the plaintiff has approved of such receipt- or's ability to return the property o Nor is he relieved from the duty of bringing a suit upon the receipt." Closely allied to the principle that the officer is not responsi- ble for more than ordinary care,' and not for tortious acts of his bailee, committed without his knowledge or consent,® it has been held that when an officer delivers attached goods for safe keeping to a person apparently in good circumstances, such officer will not be liable to the creditor if the goods are lost thereafter through the insolvency of such person,® But other states have held that the officer is liable for the infidelity of a keeper, the irresponsibility of a bailee, or the insufficiency of the receiptor to the extent of the value of the property.' And and returned to the plaintiff, the adopts the officer's act by bringing officer is discharged from liabihty to suit in his name, against the bailees, him for the goods. Jewett v. Dockray he precludes himself from disputing 34 Me. 45. their sufficiency. Runlett v. Bell, 5 I.Rice V. Wilkins, 21 Me. 558; N. H. 433. But a discharge of the de- Jenny V. Delesdernier, 20 Me. 183. fendant in bankruptcy after judgment Farnham v. Gilman, 24 Me. 250. rendered in the attachment suit was 2. Howard v. Whittemore, 9 N. H. held not to discharge the bailee. Smith 133. V. Brown, 14 N. H. 67. Although the 3. Allen V. Doyle, 33 Me. 420; Pierce petition in bankruptcy was filed be- V. Strickland, 2 Story 292. fore the judgment was rendered. Kit- 4. See ante, § 251. tredge v. Warren, 14 N. H. 509 ; Towle 5. Barron v. Cobleigh, 11 N, H.557. v. Robinson, 15 N. H. 408; Lamprey 6. Runlett v. Bell, 5 N. H. 433; v. Leavitt, 20 N. H. 544. Howard u. Whittemore, 9 N. H. 133 ; 7. Cooper v. Mowry, 16 Mass. 5; Bruce, v. Pettengill, 12 N. H. 341. PhilHps v. Bridge, 11 Mass. 242; Don- And if the creditor^ in such case, ham v. Wild, 19 Pick. (Mass.) 520. § 273 OFFICER MAY ©EMAND PKCFEBTy, ETC. 519 that if the goods be lost or wasted, or the bailee become insol- vent, the officer is still liable.' If the attached property has been left with the debtor the officer is released from any claim made by him, and if the at- taching creditor has released the officer from his liabili yto him then, as neither the creditor ncr the debtor has any claun upon the officer, he is entirely released from liability. When the attaching creditor, who has obtained a judgment in the attachment suit, fails to take out an execution within the time limited by statute for that purpose after the entry ot judgment, the liability of the cfficer who attached the goods and delivered them to a receiptor ceases.' § 273 Officer may at any time demand property delivered on receipt —The officer has, by the attachment, a special prop- erty in the goods, which he does not part with by delivering them to a receiptor, and when returnable on demand he may retake them at any time he deems it to be necessary for his security.* And this he may do before demand of payment on the execution, and even before judgment.' At any time while the attachment is in force the officer may take the attached goods from the possession of the debtor to whom the receiptor has entrusted them; and so may the re- ceiptor himself ' Such a retaking will be particularly justihable where the receiptor has become irresponsible, as by insolvency, and the officer is in danger of being held liable to the creditor without indemnity J 1 Pierce ^.Strickland, 2 Story, 292; 3, Stackpole v. Hilton. 121 Mass. Gilbert V. Crandall, 34 Vt. 188. 449. 2. Moulton .. Chapin, 28 Me. 505 , 4. Gilbert .. Crandall 34 \ t 88 Norris .. Bridgham, 14 Me. 429. The Briggs ., Mason, 31 Vt. ^33 , Pierson same principle in Shumway..Carpen- .^ H-^^' \f ' C!;;p4"3 .^^j/; f<.v 1^ Allpn rMass ^ 68 Rood «- Scott, 5 Vt. Zb6, JS.euy v. 'Indfnsucrarihe-can maintain Dexter, 15 Vt. 310 ; Parks .. Sheldon, no action against the receiptor. Shum- 36 Conn. 466. _„ ^^^^ .07 way .. Carpenter, 13 Allen (Mass.) 5. Jones .. Gilbert, 13 Conn 507 ^8 Farther as to "Action Against 6. Bond .. P-^^^«\^°^d f Mas . 394. 520 POSSESSION OF ATTACHED PROPERTY. § 274 § 274. Action against the receiptor and on the receipt— (a) Nature of the action — When it will lie. — For injury to property while in the receij^tor's possession or under his con trol, the officer may proceed against him as against any other wrong-doer/ or he may bring an action against him on his re- c ipt. The receipt existing between the officer and the person to whom he delivers the goods for safe keeping is a personal contract between them which is as binding as any other con- tract.^ It is founded upon a valid consideration which is the giving of possession on the part of the officer and the promise to return it on the part of the receiptor.^ And this consider- ation can not be disputed,' The liability of the receiptor to the sheriff is absolute so long as the responsibility for the re- turn of the property rests upon the latter, and can be dis- charged only by the act of God or the public enemy,® or by the consent of the officer.^ When a receipt has been given for property and it has been redelivered to the debtor, the receiptor is nevertheless liable to the officer, and whether he becomes a bailee or servant of the officer for the purpose of keeping the goods as it were in custody of the law, or whether he becomes liable as an original contractor, bound, at his peril, to have the goods forthcoming according to the terms of his receipt.' But it can not be extended beyond its terms and legal effects. It imparts a liability only to the parties to the suit in which the seizure was made.* The officer can maintain an action on the receipt only because of his accountability to the attaching cred- itor, or to the owner of the property attached. If the circum- stances are such that he is accountable to neither he can not recover.' And while the receipt is usually absolute and un- conditional in its terms and conclusive in respect to its recitals 1. See ante 265. 6. Torrey v. Otis, 67 Me. 573. See as 2. Clarku.Clough,3Me.357; Hutch- to "When the Action will not Lie," Inson V. Parkhurst, 1 Aikens (Vt.) post, § 275. 258. 7. Wentworth v. Leonard, 4 Cush. 3. Clark v. Gaylord, 24 Conn. 484. (Mass.) 414. 4. Morrison v. Blodgett, 8 N. H. 238 ; 8. Bell v. Shafer, 58 Wis. 223. Bellu.Shafer,58Wis. 223. See further 9. Sanford v. Pond, 37 Conn. 588; post, § 283. Allen v. Carty, 19 Vt. 65. See further 5. Cornell v. Dakin, 38 N. Y. 253. next succeeding section. §274 ACTION AGAINST THE RECEIPTOR. 521 and admissions, it is nevertheless by operation of law con- tingent. The officer has no personal interest in the property or in the possession of it, and when his special property termi- nates his right to maintain an action ceases.' This is true whether the receipt is under seal or otherwise." The liability of the receiptor depending upon the liability of the officer who took the receipt when the property is demanded of the attach- ing officer on execution in season to charge him, the receiptor's liability is fixed, although the property be not demanded of him within the time fixed by the statute for making the de- mand on execution.^ It makes no difference whether the re- ceiptor has possession of the goods or not, so long as he has receipted for them he is bound to fulfill his contract.* Neither is it of any avail to him that the debtor, to whom he delivered the attached partnership property, was indebted to the partner- ship of which he was a member, in a greater amount than the value of the property, and that the property was absorbed in 1. Fowler v. Bishop, 31 Conn. 560. 2. Dayton v. Merritt, 33 Conn. 184. 3. Allen v. Carty, 19 Vt. 65. When a plaintiff receives a final judgment at a term of court which ends in Saturday, Monday will be the first day on which the party may take out execution ; and that day is to be excluded in the computation of the thirty days within which property at- tached must be demanded from the attaching officer by the officer who holds the execution, in order to charge the property. Allen v. Carty, 19 Vt. 65. Although the attachment may have been dissolved by delivery of the property by the receiptor to the debt- or, the officer is damnified and the receiptor is liable on the receipt. Col- well V. Eichards, 9 Gray (Mass.) 374. When the goods have been de- manded within thirty days after judg- ment, and have not been delivered up to be taken in execution, the re- ceiptor is not discharged by the sub- sequent commitment of the debtor on the execution, and the bringing of the suit and the recovery of a judgment thereon by the creditor against him and his surety for an escape on a bond given by them for the prison limits. Twining v. Foot, 5 Cush. (Mass.) 512. Nor can an attaching creditor, who has obtained judgment and taken the steps necessary to perfect the lien under his attachment, release the reeeiptor's obligation to the officer while he retains his judgment against the debtor, even though the officer declares his liability to the creditor as his ground of action in the writ made before the attempted release. Torrey V. Otis, 67 Me. 573. 4. Dillenback v. Jerome, 7 Cow, (N. Y.) 294 ; Miller v. Adsit, 16 Wend. (N. Y.) 335. 522 POSSESSION OF ATTACHED PROPERTY. § 275 satisfying such indebtedness. Nor will it make any difference if the debtor never had any interest in the property/ § 275. (b) When the action will not lie. — Since the attach- ing officer can maintain an action on a receipt only because of his accountability to the attaching creditor or to the owner of the property attached,^ it follows that if any circumstances arise which render the officer no longer liable to either of the parties to the attachment suit he can have no action against the receiptor.* When an assignment is made of the property attached in a manner that will discharge the attachment, no action thereon can be maintained against the receiptor, for his liability is at an end.* And the fact that he had taken an indemnity against any loss he might sustain, does not enlarge his liability.® In fact a dissolution of the attachment always discharges the receiptor from his engagement to redeliver the attached goods to the officer, unless the officer is still accountable for them to the debtor.* This is true, though the dissolution be occasioned by the debtor's going into bankruptcy.' Or upon the debtor's filing a bill of insolvency and aj^plying the attached proiDcrty to the liquidation of his debts. ^ If, after judgment is obtained in the attachment suit, no 1. Staples u. Fillmore, 43 Conn. 510. 4. Butterfield v. Converse, 10 Gush. And where the debtor was dis- (Mass.) 317. charged in bankruptcy on a jjetition 5. Sprague v. Wheatland, (Mass ) 3 filed before judgment was rendered Mete. 416. in the attachment suit, the receiptor 6. Buel v. Metcalf, Kirby (Conn.) who had delivered the property to 40; Parsonst?.Phillips, IKoot (Conn.) him was held to be nevertheless liable 481 ; Knap v. Sprague, 9 Mass, 258 ; on his receipt. Lamprey v. Leavitt, Phillips v^ Bridge, 11 Mass. 242; Jew- 20 N. H. 544; Towle v. Robinson, 15 ett v. Torrey, 11 Mass. 219; Howard v. N. H. 408; Kittredge v. Warren, 14 Smith, 12 Pick. (Mass.) 202 ; Strong u. N. H. 509. Hoyt, 2 Tyler, (Vt.) 208; Catlin v. 2. Sanford v. Pond, 37 Conn. 588. Lowrey, 1 D. Chipman {Vt.) 396. 3. Sanford v. Pond, 37 Conn. 588; 7. Mitchell v. Gooch, 60 Me. 110. Plaisted v. Hoar, 45 Me. 380; Shaw v. 8. Wright v. Morley, 150 Mass. 613, Laughton, 20 Me. 266 ; Sawyer v. Ma- 23 N. E. Rep. 232 ; Wright v. Dawson, son, 19 Me. 49; Roberts v. Carpenter, 147 Mass. 384 ; Shumway v. Carpenter, 53 Vt. 678. 13 Allen (Mass.) 68. Compare, ante, §271. § 275 WHEN THE ACTION WILL NOT LIE. 523 steps be taken to charge the property by demand on execution within the time limited therefor by the statute, no action can be had against the receiptor, because the liability of the officer himself is thereby at an end.* No action can be maintained against the receiptor upon his receipt after the attached property, which has been in his pos- session, is returned into the hands of the attaching officer.^ And if the officer who made the first attachment levy a second attachment upon the same property and take it into his own hands, this will terminate the liability of the receiptor.* The receiiDtor will be relieved from liability on his receipt for an attached vessel if the attaching officer himself take a re- ceipt therefor from the owner and she be sent to sea.* Like- wise the receiptor's liability will be at an end when the attaching officer sells the property before demand and by the mutual con- sent of the attaching creditor, the debtor, and the receiptor; because such a sale is an implied rescission of the contract evi- denced by the receipt^ notwithstanding the fact that the sale be made under the direction of the receiptor and operate for their benefit and the proceeds be paid into their hands." The release of the receiptor from liability for injury or loss of goods occasioned without negligence upon the part of the re- ceiptor depends, of course, upon the degree of care required of him in the state where the bailment was made.® In Tennessee trover at least will not lie against the receiptor for property which is lost or which has ceased to exist, before the termina- tion of the suit, because where there is no negligence there can be no conversion.' But Massachusetts holds to the most string- ent rule and makes him absolutely liable; as where a horse was attached, and, after being left in the debtor's possession, died through no fault of any one, the receiptor was held liable. And where swine had been attached and left with the debtor, 1. Frost V, Kellogg, 23 Vt. 308. See 4. Richardson v. Kimball, 28 Me. Allen V. Carty, 19 Vt. 65. See above 463. section. 5. Kelly v. Dexter, 15 Vt. 310. 2. Kelly v. Dexter, 15 Vt. 310. 6. See ante, §§ 251, 252 and 265. 3. Rood V. Scott, 5 Vt. 263. 7. Wall v. Pulliam, 5 Heisk. (Tenn.) 365. 524 POSSESSION OF ATTACHED PROPERTY. § 276 was by him killed, converted into pork and sold, the receiptor was held liable to the full value of the swine before being killed.^ But a contrary rule is followed in Maine. ^ And in Vermont it is a well settled rule that the receiptor is not liable on his receipt when the property receipted for has perished without his fault/ "Where exempt property has been attached and yet allowed to remain in the debtor's possession, and a third party has receipted for it, he is not liable on his receipt if the creditor has not been prevented from attaching property which was not exempt.* And although the bailee may have given a receipt for the property, yet if it should so happen that the debtor was not the owner of such property at the time of the attachment and that the property has been surrendered to the true owner, the receiptor will not be liable to an action on the receipt.^ Furthermore, it seems that in Vermont and New Hampshire the receiptor will not be liable to an action when the attaching creditor has amended his declaration so as to increase his lien upon the property attached beyond the amount originally in- tended to be sued for.* But an amendment of the original writ of attachment, discharging one of the defendants, does not in any wise lessen the liability of the receiptor.^ Nor in Massachusetts does the filing of a new count after the attach- ment has been made and of goods delivered to a receiptor, dis- charge him from his responsibility to the officer.* The last named state holds to a more rigid rule regarding receiptors than the other states, as has been hereinbefore shown. § 276. (c) When demand is necessary before bringing suit. — The necessity of making a demand before commencing an 1. Thayer v. Hunt, 2 Allen (Mass.) 4. Stone v. Sleeper, 59 N. H. 205. 449. 5. Penobscot Boom Co. v. "Wilkins, 2. Shaw V. Laughton, 20 Me. 266. 27 Me. 345. In this case a horse being part of 6. Austin v. Burlington, 34 Vt. 506; the property receipted for, dying Laighton v. Lord, 29 N. H. 237, within the time limited for delivery 7. Smith v. Brown, 14 N. H. 67. without fault of the receiptor, he was 8. Miller v. Clark, 8 Pick. (Mass.) held not to be liable. 412. 3. Ide V. Fassett, 45 Vt. 68. c 276 WHEN DEMAND IS NECESSARY. 525 action upon a receipt will, of course, depend upon *e terms of the receipt on which the action is to be brought. The receipt being conditioned to return the property on demand (which is the general condition), a demand is absolutely necessary to fix the liability of the receiptor to the attaching officer and no action can be maintained until such demand has been made. And it seems the inability of the receiptor to redelwer the property does not avoid the necessity of making a demand in order to fix his liability.' The demand must be made of the receiptor by whatever offi- cer holds the execution' But he can not make the demand unless he holds the receipt.* And when such officer is another than the attaching officer he must state by what authority he makes the demand. If his right to claim the property is not questioned, the authority claimed by him will be thereby ad- mitted by the receiptor.' The receiptor must be notiaed, by the officer making such demand, that he holds the execution The officer may, at any time, during the pendency of the at- tachment, demand of the receiptor that he return the property, and a neglect to comply with such request will subject him to damages to the amount of the property.' And there is a ime in which such demand mmt be made, or the attachment will be dissolved, and the receiptor released from liability to an action 1 Baron . Thorp, 27 Conn. 251; ceiptor ran not be made by the at- WethereU /naghes 45 Me. 61 ; Oar- taching offlcer. He can make no legal -Wetherell ». n g , demand for property of the receiptor, '■'. Bicknel ;. hTi: 33 Me. 297; nnless he is in possession of there- Pe'arfont" Tiniker, 36 Me. 384. ceipt. The creditor being the equitable TDavis. Miller, 1 Vt. 9; Brad- assignee of the receipt may make de- bury .Tay or, 8 Me! (8 Greenl.) 130; mand upon it and enforce it. Davis Pearsons » Tiicker, 86 Me. 384. .. Maloney, 79 Me 110 4Zvis . MaloW, 79 Me. 110; 6. Phelps ,.. Gilchrist 28 N. H. 266 Moo" J Fargo, 112 MaW. 254 ; Stew- 6. Walbridge .. Smith, Brayton X ^'V'hrXripthafbeentakenin '^1^<^ ...I^wrey. 1 D. Obipman acLdance with the instruction of the (Vf) 896; Pierson « . Hjey, 1 D. creditor orhe has elected to rely upon Cbipman (Vt.) ol , Gilbert ». i.ran t the'r ban the oblig.ation of the dall. 34 Vt^ 188; Briggs .- M-on, M oVcertokeeptbe property in safety, Vt 433; Rood »■ Sco", 5 VtJ63 Id such creditor is in possession of Kelly .. Dexter, 15 Vt. 310, Jo"«= "• the rectpt, the demand upon the re- Gilbert, 13 Conn. 507. See a»«, § 273. 526 POSSESSION OP ATTACHED PROPERTY. § thereon. This time is the period fixed by statute within which a demand must be made on execution issuing on the judgment obtained. However, when the liability of the attaching officer has been fixed by a demand upon him within the time limited after judgment, by statute, for making a demand upon the exe- cution, it seems, the demand may be made upon the receiptor after the expiration of such time.' But, it seems, that where the officer holding the execution is not the officer who took the receipt, a demand must be made, by him upon the receiptor within the time limited by the statute for making demands on execution.^ However, the receiptor may deliver the property after the expiration of such time.' A personal demand upon the receiptor seems not to be always necessary. A demand at his dwelling-house may be sufficient.'^ Even though the same may be in his absence.^ But a de- mand left at the receiptor's dwelling-house will not be suf- ficent when he is absent from the state. ^ If a personal de- mand is made of the receiptor while he is absent from his resi- dence it is meet that he should be allowed a sufficient time to return the property. However, if he has disposed of it, a de- mand made of him anywhere is sufficient.' Where there have been several attachments against the same property, and a person has become a receiptor for such prop- erty in all cases, a demand in one case is sufficient to fix his liability for all of them^ if Judgment and execution has been had in all of the cases.* A demand for the delivery of the goods upon one of two joint receiptors and his refusal to de- liver the goods are sufficient to support an action on the re- 1. Allen V. Carty, 19 Vt. 65 j Stewart 3. Merrill v. Curtis, 18 Me. 272. c. Platts, 20 N. H. 476. 4. Mason v, Briggs, 16 Mass. 453. This case holds that an action on the 5. Mason v. Briggs, 16 Mass. 453. receipt is not barred by a payment of See, also, Barney v. Weeks, 4 Vt. 146; the Judgment by the debtor. It would Eemick v. Atkinson, 11 N. H. 256. not be so barred in any case unless the 6. Sanborn v. Buswell, 51 N. H. debtor was in possession of the prop- 573. erty or unless the attaching officer had 7. Gilmore «. McNeil, 46 Me. 542. in some manner released the receiptor 8. Hinckley v. Bridgham, 46 Me. from obligation to him. 450, 2. Stewart v. Platts, 20 N. H. 476. § 277 RETURN OF PROPERTY ON DEMAND. 527 ceipt against both.^ But if the action be not upon the con- tract, but for a tort, a demand must be made upon both. The defendant's liability does not become fixed immediately upon the demand. An action does not accrue against him until there has been a neglect to comply with such demand after reasonable time has been given him. This is the rule m all cases where there is a specific thing to be done on demand, such as the delivery of property or performance of service. The question of neglect is always a question for the |ury to de- termine.' It is not necessary in order to maintain an action against the receiptor that he refuse to deliver the property on demand. His liability is fixed by his failure to deliver.' But neglect to return on demand, the property for which the receipt was given, will, at any time, subject the receiptor to damagesjf or the amount of the property.® §277« (d) Return of property on demand ends receiptor's liability.— When a proper demand is made upon a receiptor, and he liturns the attached property held by him, the end for which the receipt was given has been attained and the receiptor has canceled his obligation in regard thereto. The property returned by the receiptor must be the identical property for which the receipt was given after the attachment was levied thereon.' And it must be delivered to the person specified in the promise to return.' The receiptor must be given a reason- able time within which to return the property after the demand is made as hereinbefore shown." And a bailee is not justified in holding property an unreasonable time because of adverse claimants, if the plaintiff offers him a bond of indemnity; such holding is a conversion, and if he has great doubts as to the rightful owner it seems he may begin an action in equity by bill of interpleader to discover the true owners.^ 1. Griswold V. Plumb, 13 Mass. 298. 5. Catlin v. Lowrey, 1 D. Chipman 2. AVhite v. Demary, 2 N. H. 546. (Vt.) 396. 3. Jameson v. Ware, 6 Vt. 610. 9- Gilmore v. McNeil, 46 Me. 532. 4 Scott V. Whittemore, 27 N. H. 7. Smith v. Wadleigh, 18 Me. 95. 309. 8. See ante, § 274. 9. Ball V. Liney, 48 N. Y. 6. 528 POSSESSION OF ATTACHED PROPERTY. § 278 § 278. (e) When demand is not necessary before bring^ing guit^ — "When a receipt contains the sole condition that the re- ceiptor will redeliver the property within a stated number of days after the rendition of judgment, no demand of him for the return of the property is necessary before bringing an action on the receipt. The expiration of the time, without a return of the property, fixes his liability.' And when the receiptor gives a receipt containing the alternate conditions that he will re- deliver the property on demand, or if no demand is made then within a specified time after the judgment is obtained in the action he will deliver it, no demand upon him is necessary; the expiration of the specified time fixes his liability.^ A re- ceipt conditioned, to redeliver the property on demand and if no demand be made within a certain number of days from the rendition of judgment to redeliver the property at a place named and notify the officer thereof, is a legal contract; and the officer can maintain an action for the breach of it, without making a demand, and without giving notice of the time when the judgment was rendered, if it appear that one of the receipt- ors was a party to the suit.^ And it seems, the receiptor is liable without demand being made upon him within the time specified, when he has allowed the owner of the goods to re- main in possession and to carry them beyond the reach of the attaching officer, provided such attaching officer continues to be answerable to the attaching creditor.* When a receiptor mortgages property to pay his own debts, such act constitutes a conversion and no demand is necessary before bringing suit therefor.* When two persons sign a receipt for property attached and one of the co-receiptors sells it, the permission of the sheriff to the other co-recei]3tor to recover it is equivalent to a demand.® 1. Hodskin v. Cox, 7 Cush. (Mass.) And the same principle maintains 471. in Massachusetts. Hodskin v. Cox, 2. Low V. Dunham, 61 Me. 566; 7 Cush. (Mass.) 471. Humphreys w.Cobb, 22 Me. 380 ; Went- 4. Webster v. Coffin, 14 Mass. 196. worth V.Leonard, 4 Cush. (Mass.) 414. 5. Stevens v. Eames, 22 N. H. 568. 3. Shaw V. Laughton, 20 Me. 266. 6. Carr v. Farley, 12 Me. 328. § 279 WHO MAY MAINTAIN THE ACTION. 529 § 279 . ( f ) Who may maintain the action ag:ainst a receiptor. —An actioii on the receipt must be brought by the person or officer holding the receipt, for no one else has a right to demand it.' If the plaintiff in the attachment suit is in possession of the receipt and he elects to rely upon it, he will be considered as the equitable assignee thereof, and may assert it without demand upon the attaching officer.'' But if the receipt has been delivered to the attaching creditor unindorsed, the action should be brought in the name of the attaching officer." Where the attaching officer has taken a receipt, conditioned for the delivery of the goods to any specified person, the officer may maintain an action on the receipt for a breach of such con- tract.* Where the receipt has been taken by a deputy sheriff, the sheriff, claiming the bailment to have been made by himself through the medium of his servant, may maintain an action thereon in his own name for the benefit of the person inter- ested in the return of the property,' or the deputy may sue in his own name.' And where a deputy has bailed the attached property and the sheriff's term of office (and of course that of the deputy) has expired before the judgment is recovered, the new sheriff may seasonably demand the goods of the attaching officer, and he in turn may maintain an action for its recovery from the bailee.' A person with authority to serve a writ, after attaching property and delivering it to a receiptor, may maintain an action upon the receipt against the receiptor in his own name, if the receiptor after due demand by a legal officer refuse to deliver the prop- erty to be disposed of upon the execution." I.Davis V. Maloney, 79 Me. 110; signees, indorsees and parties inter- Moore V. Fargo, 112 Mass. 254. ested tbxerein. 2 Davis V. Maloney, 79 Me. 110. 4. Smith v. Wadleigh, 18 Me. 95. But this will not dispense with a 5. Sibley v. Story, 8 Vt. 15; Spencer necessity to make a demand upon the v. Williams, 2 Vt. 209; Baker v. receipt. Fuller, 21 Pick. (Mass.) 318; Davis v. 3. Moore v. Fargo, 112 Mass. 254. Miller, 1 Vt. 9. This will, of course, be controlled 6. Spencer v. Williams, 2 Vt. 209. by the local practice regarding the 7. Bradbury v. Taylor, 8 Me. 130. bringing of suits in the name of as- 8. Maxfield v. Scott, 17 YL 634o Att. 34 530 POSSESSION OF ATTACHED PROPERTY, § 280 Trover will lie against the receiptor of attached property, whether the action is brought by the sheriff to whom the re- ceipt was given, or in his name for the benefit of those whose rights are affected.^ A deputy sheriff may maintain the action.^ The receiptor is liable to any officer to whom the execution is given, when a proper demand has been made of him and he has neglected or refused to return the property; except in some states in the case of the death of animals without fault of the receiptor.^ Furthermore, it has been held in one case that after a conversion the title is in the owner and he may take it from the wrong-doer. If there has been a sale of the property, the wrong-doer can set up the sale in mitigation of damages.* Trespass may be maintained for the taking of goods; and this, it seems, by the receiptor himself where attached goods have been placed in the hands of another person for safe keep- ing, for the possession of the goods is constructively with the receiptor.^ An action may be maintained by an assignee for his individ- ual interest in property which has been attached for the debt of one of the owners and sold by a receiptor into whose hands it was given, where the receiptor before the attachment signed a contract with the owners to hold the property for them and to sell and account to them for it.* § 280. (g)Formoftlieaction.— While assumpsit willlie upon a receipt which promises to deliver the goods or their value,' yet an action sounding in tort is oftener brought, because it is gen- erally a more efficient remedy in such cases. Either replevin or trover will lie when there has been a refusal, on demand, to deliver the attached property.' Trover will lie in an ordinary case in favor of the officer against the receiptor of goods attached, if the latter fails to de- 1. Stevens ?;. Eames, 22 N. H. 568. 6. Eldridge v. Lancy, 17 Pick. 2. Bradbury v. Taylor, 8 Me. 130. (Mass.) 352. 3. Cross V. Brown, 41 N. H. 283. 7. Holt v. Burbank, 47 N. H. 164; See ante, § 275. Dezell v. Odell, 3 Hill (N. Y.) 215. 4. Ball V. Liney, 48 N. Y. 6. 8. Dezell v. Odell, 3 Hill (N. Y.) 5. Burrows v. Stoddard, 3 Conn. 215. 160. 280 FORM OF THE ACTION o 531 liver them on demand, vniless the officer's liability has been discharged and the receiptor's liability to him is thereby canceled / or unless animals have died without the receiptor's fault in states considering this a discharge of obligation to return the prop- erty.' Trover will lie against the receiptor of attached property whether the action is brought by the sheriff to whom the re- ceipt was given, or for the benefit of those whose rights are affected." The receiptor, by his receipt, acknowledge that he has "found" the property claimed in the suit, and, having promised to return it, he will be liable in trover when he fails to do so on demand.* And if on the back of this receipt he ac- knowledges such demand it is sufficient evidence to prove the conversion.® Replevin may be maintained when goods have been wrong- fully taken from the hands of the receiptor,^ even though the goods have been wrongfully attached in the hands of the bailee and delivered on a receipt to a third party, and they afterwards get into the hands of the bailee, the attachment being thereby dissolved.' It was held, in an action upon the re- ceipt brought in the name of the dep- ut5^ sheriff for the benefit of the bondsmen, that the payment made by the deputy was legal and must go to the reduction of damages, notwith- standing the fact that the money was not paid to the deputy in the presence of the bondsmen as per agreement. Holt V. Burbank, 47 N. H. 164. 2. Cross V. Brown, 41 N. H. 283. 3. Stevens v. Eames, 22 N. H. 568. If the sheriff, to whom a receipt of property has been given, assents to the conversion of the same by the re- ceiptor, he thereby waives his claim upon the receipt. Stevens v. Eames, 22 N. H. 568. 4. Webb V. Steele, 13 N. H. 230. 5. Oargill v. Webb, 10 N. H. 199. 6. Carr v. Farley, 12 Me. 328. 7. Small V. Hutchins, 19 Me. 255; Lathrop v. Cook, 14 Me. 414. 1. Pettes V. Marsh, 15 Vt. 454; Holt V. Burbank, 47 N. H. 164; Webb v. Steele, 13 N. H. 230. A deputy sheriff served an attach- ment writ and made a return. His bondsmen feared they might be made to pay a loss and induced the debtors to give a receipt, with surety, for the attached property. One of the bonds- men and the defendants in the origi- nal action agreed that payment should be made to the deputy in the presence of the bondsmen. After judgment was obtained in the main action and an execution put into the hands of the deputy a demand for the property was made in an action begun against the receiptors. About this time the money was paid to the deputy sheriff, not in the presence of the bondsmen, and the execution discharged by the dep- uty, who paid only a part of the money to the creditors, and the bondsmen were compelled to pay the balance. 532 POSSESSION OF ATTACHED PROPERTY. §§ 281, 282 Trespass may be maintained for the taking and that, it seems, by the receiptor himself, for he has constructive possession, though the goods have been placed in the hands of another person for safe keeping.^ §281. (h) Pleading in the action. — When a plaintiff has delivered attached property to the defendant for safe keeping on a receipt to deliver on demand, and an action is brought on such receipt after neglect or refusal to return the property, he may allege in his declaration the delivery of attached property, the taking of the receipt, the making of the demand and the defendant's neglect or refusal; this will be sufficient without averring that judgment or execution has been obtained in the attachment suit.^ He need not aver the writ and proceedings thereunder; and if he does not he will not be under the neces- sity of proving it.' § 282. (i) Proof necessary to sustain the action. — The proof in an action against the receiptor will, of course, be governed by the form of the action and will be the same as is required in other like actions. When the officer brings suit upon the receipt for property attached by him, he need not show an actual attachment of the property and delivery therefor to the receiptor by any other evidence than his return and the receipt itself.* The proof of the writ and the proceedings thereafter are not necessary, unless they have been made so by the declaration of the plaintiff.* The officer who holds the execu- tion is a competent witness to prove that a proper demand was made.® And proof of previous demand may be made by show- ing the admission of such demand indorsed on the back of the receipt by the receiptor.' But such an admission is not suffi- cient proof of the continuance of the lien upon the property, or that the demand was made within the required time after the rendition of the judgment. * Leaving a written demand for 1. Burrows •;;. Stoddard, 3 Conn. 5. Lowry v. Cady, 4 Vt. 504. 160. 6. Allen v. Carty, 19 Vt. 65. 2. Farnham v. Cram, 15 Me. 79. 7. Cargill v. Webb, 10 N. H. 199. 3. Lowry v. Cady, 4 Vt. 504. 8. Fowles v. Pindar, 19 Me. 420. 4. Stimson v. Ward, 47 Vt. 624. § 283 PROOF IN DEFENSE OF THE ACTION. 533 the property at the receiptor's house or delivering it to him personally is not sufficient evidence either of a breach of the receiptor's contract or of a conversion of the property.' Nor is a conversion proved by showing that a sheriff attached prop- erty and delivered it to a bailee upon his written agreement to redeliver it upon demand; that the debtor used the property for his temporary convenience; that the sheriff afterward (the contract of bailment existing unrescinded ) attached and sold the property upon another writ; that a subsequent demand of the property was made upon the bailee and he omitted to deliver it.^ But a joint conversion may be proved by showing that two persons receipted for the property and that one of them converted it with the knowledge of the other who did not inter- fere to prevent the conversion; that a subsequent demand was made upon him who did not convert it and that he did not comply with the demand.' § 283. (j) Proof in defense of the action.— It happens not infrequently that the receiptor has in an action against him on the receipt a good defense thereto. The liability of the re- ceiptor for property attached being limited by that of the of- ficer, it follows that when the receiptor can show that the of- ficer is no longer holden to any of the parties to the attach- ment suit such receiptor will be discharged from any liability to the attaching officer.* It is a prima facie defense to show that when the receipt was given there was but one attachment on the property ; that the property went back into the posses- sion of the debtor, and that the debt for the collection of which the attachment was brought was settled before the sheriff made a demand upon the receiptor. Or that the receiptor has made him satisfaction therefor, provided the officer is answerable for the goods to the debtor only.^ And, at most, in a case where it can be shown that the goods have gone back into the posses- sion of the debtor, he being entitled to them, only nominal 1. Phelps V. Gilchrist, 28 N. H. 266. 5. Whitney v. Farwell, 10 N. H. 9; 2. Young V. Walker, 12 N. H. 502. Whittier v. Smith, 11 Mass. 211; 3. Stevens v. Eames, 22 N. H. 568. Cooper v. Mowry, 16 Mass. 5 ; Lathrop 4. Sawyer v. Mason, 19 Me. 49. v. Cook, 14 Me. 414. 534 POSSESSION OF ATTACHED PROPERTY. § 283 damages can be recovered against the receiptor.' But where the officer who made the attachment has, while the goods were in the bailee's hands, returned them as attached on another creditor's suit and the bailee refused to redeliver the goods to the officer on demand, the officer may maintain an action against the receiptor and it will be no defense or mitigation of damages that the goods were restored to the debtor, or disposed of for his benefit, or that the debt for which they were attached is satisfied, so long as the officer is answerable for them on the second attachment.^ That the goods attached and receipted for do not belong to the defendant in the attachment suit may or may not be a de- fense to an action by the officer on the receipt, according to the court in which the action is brought. It has been said in Min- nesota that whether or not the receiptor may discharge his lia- bility in such suit by proving in defense that the property at- tached and receipted for does not belong to the debtor but to a third person, is to be determined by ascertaining from the terms of his contract, as applied to the circumstances under which it was executed, whether it is a contract of indemnity or an express assurance for a certain amount or value of attached property w^hereby he assumes an absolute liability, or a mere contract of bailment for the safe-keeping and return of specific chattels.' Many courts hold that the receiptor may prove, in an action against him by the attaching officer on the receipt, that the property did not belong to the debtor and could not lawfully be applied to the payment of the attaching creditor's demand,* or that some of the goods attached were not the goods of the debtor and that others were not attachable,® and that the 1. Farnham v. Cram, 15 Me. 79. 3. Mason v. Aldrich, 36 Minn. 283, 2. Whittier v. Smith, 11 Mass. 211 ; 30 N. W. Rep. 884. Jewett V. Torrey, 11 Mass. 219; Web- 4. Learned v. Bryant, 13 Mass. 224; ster V. Coffin, 14 Mass. 196; Knap v. Denny v. Willard, 11 Pick. (Mass.) Sprague, 9 Mass. 258 ; Jenney v. Rod- 519 ; Fisher v. Bartlett, 8 Me. (8 man, 16 Mass. 464; Hartshorn ?;. Hal- Greenl.) 122; Sawyer v. Mason, 19 sey, 1 Root (Conn.) 92; Maples v. Me. 49; Drew v. Livermore, 40 Me. Peck, 1 Root (Conn.) 140; Reed v. 266; Lathrop v. Cook, 14 Me. 414; Tousley, 1 Root (Conn.) 374. Fisher v. Bartlett, 8 Me. 122. 5. Bacon v. Daniels, 116 Mass. 474. § 283 PROOF IN DEFENSE OF THE ACTION. 535 defendant is not estopped by his receipt.* The burden of proof in such cases is upon tlie defendant.^ Such lack of title in the debtor can not be proved by showing that such debtor has a larger execution against the creditor, which the officer has been required to set-off; for the officer has a right to the goods that he may restore them to the debtor.' Other courts hold that a receiptor for property attached becomes liable to the officer if he does not deliver the property to him on demand, and that he can not make excuse by showing that the defendant named in the writ has no title to the property attached.* Or by show- ing that such goods were mortgaged if the mortgagee has not made demand upon him for the property.^ It has been said, in Maine, that, in any event, the officer has the right to call the property out of the possession of the receiptor; and even if, at the time of the attachment, the property did not belong to the debtor, but to a third person, that circumstance alone will not constitute a defense in an action by the officer against the receiptor; for the officer must obtain possession of the property in order that he may restore it to its true owner.® Likewise some courts permit one, who has receipted for prop- erty delivered to him by an officer who has taken it on attach- ment, to show in defense to an action upon the receipt that the property receipted for w^as, at the time of the attachment, his own property and not liable to attachment, and that he then so informed the officer; and that such showing entitles him to a judgment in his favor.' Other courts maintain that a re- ceiptor can not defend against an action on his receipt by showing that the property was his own and that he had so in- formed the officer;* even though he signed the receipt upon 1. Johns V. Church, 12 Pick. (Mass.) of his previous demand. Scott v. 657. Whittemore, 27 N. H. 309. 2. Burt V. Perkins, 9 Gray 317. 6. Fisher v. Bartlett, 8 Me. 122. 3. Jenney v. Rodman, 16 Mass.464. 7. Adams v. Fox, 17 Vt. 361 ; Jones 4. Clark v. Gaylord, 24 Conn. 484. v. Gilbert, 13 Conn. 507; Eleven v. 5. Scott V. Whittemore, 27 N. H. Freer, 10 Cal. 172. 309. 8. Drew ?'. Livermore, 40 Me. 266; After a demand by the officer for Lathrop t'. Cook, 14 Me. 414; Sawyer property receipted for, an offer by v. Mason, 19 Me. 49; Dezell t». Odell, him to receive it upon terms which 3 Hill (N, Y.) 215. are not complied with is not a waiver 536 POSSESSION OF attachp:d property. § 28J5 the officer's telling him he could better reclaim the j)roperty than if he should let it be moved ;^ because they claim that by giving his receipt he is estopped from controverting the debt- or's title to the goods. ^ However, a bailee of goods who has given his receipt to a deputy sheriff, promising to redeliver them to the sheriff on demand, and who afterwards converts them to his own use, is not estopped by such receipt from showing in an action of tres- pass against him by the debtor, that the goods were his own property.^ The debtor may show, in New Hampshire, in an action on the receipt, by the attaching officer to whom he has given the receipt^ that another officer who had previously attached the goods had a better title to them than the plaintiff, and that he had delivered the goods to such former attaching officer.* The receiptor, in some states, can not deny the delivery to him of the goods after having acknowledged the same in writ- ing in consequence of which the officer has made himself re- sponsible for the goods to the creditor.^ Or that he signed for more than he received upon representations of the officer that he would be holden for so much only as was actually deliv- ered,® or that the goods are still in his possession;'' or that no such goods were actually attached,* though it be a matter of fact that the attachment was a nominal one and that the officer never seized the goods ;^ nor can he set up a want of consider- ation;" for the stipulation in the receipt is an absolute one." It being said that however strong may be the objections against 1. Bursley v. Hamilton, 15 Pick. Bowley v. Angire, 49 Vt. 41 ; Spencer (Mass.) 40. ■;;. Williams et al., 2 Vt. 209. 2. Dewey v. Field, 4 Met. 381. 6. Bowley v. Angire, 49 Vt. 41. 3. Barron v. Cobleigh, 11 N.H. 557. 7. Bell v. Shafer, 58 Wis. 223. 4. Webster v. Harper, 7 N. H. 594. 8. Allen v. Butler, 9 Vt. 122; Spen- And the plaintiff can not maintain cer v. Williams, 2 Vt. 209 ; Lowry v. his action by showing in rebuttal that Cady, 4 Vt. 504. the writ on which the first attach- 9. Jewett v. Torrey, 11 Mass. 219.- ment was made was fraudulent, un- 10. Morrison v. Blodgett, 8 N. H. less he can also show that the de- 238. fendant was a party to the fraud. 11. Page v. Thrall, 11 Vt. 230; Catlin Webster v. Harper, 7 N. H. 594. v. Lowrey, 1 D. Chipman (Vt.) 396. 5. Stimson v. Ward, 47 Vt. 624 ; § 283 PROOF IN DEFENSE OF THE ACTION, 537 the propriety of the proceedings on the part of an officer v/ho returns an attachment of goods, of which he never took pos- session, or which never had any existence, yet the persons who have acknowledged in writing the receipt of the goods de- scribed as legally attached, are not permitted to deny the actual receipt or contest the validity of the attachment.^ But in Massachusetts it is competent in an action against a receiptor, for said receiptor to show that no attachment of the goods had actually been made.^ The fact that the goods were exempt from attachment, and that the receiptor has declared that fact to the attaching officer at the time of the attachment, is a good defense in an action on such receipt by the attaching officer; and such showing will entitle the receiptor to a judgment in his favor. ^ Evidence is admissible in such an action to show that some of the goods were not attachable and that some were not the property of the debtor.* But the debtor must, at the time the attachment is being made, make his claim that the property is exempt, for if he does not, but gives his receipt to the attaching officer, he is estopped from setting up that 'fact later; for did the attaching officer know of the exemption of that certain chattel at the time he levied the attachment he might have levied on some other.** The receiptor can not, under any circumstance, defend him- self on an action on his receipt by showing that the attaching ofiicer had made an excessive levy by seizing property of greater value than was specified in the writ.^ 1. Allen V. Butler, 9 Vt. 122. the debt and costs recovered in a suit 2. Lyman v. Lyman, 11 Mass. 317; against the defendant, it was held in Bailey v. Jewett, 14 Mass. 155. an action on the receipt that it could 3. Halbert v. Soule. 57 Vt. 358; not be shown in defense that some of contra Smith v. Cudworth, 24 Pick, the property was not the property of (Mass.) 196. the defendant in the attachment at 4. Bacon v. Daniels, 116 Mass. 474. the time of the levy and that other Where a receiptor gave a receipt goods were not attachable. Bacon v, under seal agreeing that the property Daniels, 116 Mass. 474. attached as the property of the de- 5. Buzzell v. Hardy, 58 N. H. 331. fendant was his, and that on demand 6. Dezell v. Odell, 3 Hill (N. Y.) the receiptor would return them to 215; Hunter v. Peaks, 74 Me. 363; the officer or pay him the amount of Parsons v. Strong, 13 Vt. 235. 538 POSSESSION OF ATTACHED PROPERTY. § 283 Whether or not the defendant, in an action on a receipt, can release himself from liability by showing that the debtor is an insolvent or has been declared a bankrupt, depends upon the construction of the receipt as given by the court in passing upon it. If the receipt is deemed to be absolute in its terms, it can not be shown in defense;^ but if it is considered a con- ditional contract not holding the receiptor for the loss of prop- erty when the same is not occasioned by his fault, then such insolvency or bankruptcy will be a good defense when the re- ceiptor has allowed the owner to retake or retain possession of the property, and it has been lost thereby. The courts hold- ing to these different degrees of liability have hereinbefore been pointed out.^ In an action againit the bailee on his receipt for property taken in an attachment, he can not set up that the sheriff who attached the goods was not a duly authorized officer acting within the scope of his authority,^ unless it is made to appear that the suit is prosecuted solely for the benefit of the officer, and not for the benefit of the creditor in the suit upon which the attachment was made.* The character of the judgment rendered in the attachment suit is not, in Maine, a matter of which the bailee, in an action against him on his receipt, can avail himself. Receiptors of property attached can not impeach the judgment rendered in the suit against the defendant; and even if no judgment is ren- dered, they are accountable to the officer.^ The receiptor is bound to surrender the attached property on demand, even though a judgment has not yet been granted. He can not even impeach a fraudulent judgment.® Set-off is, however, available on the part of the defendant in an action on the receipt. Although a defendant is liable for 1. Towle V. Robinson, 15 N. H. But the attaching oflScer represent- 408. ing the attaching creditor may im- 2. See ante, §§ 274 and 275. peach a fraudulent debtor. Bangs v. 3. Jewett V. Torrey, 11 Mass. 219. Beacham, 68 Me. 425. See post, § 357, 4. Taylor v. Nichols, 29 Vt. 104. " Liability of Executive Officer," 6. Brown v. Atwell, 31 Me. 351. " Defense." 6. Bangs v. Beacham, 68 Me. 425. § 284 JUDGMENT IN AN ACTION AGAINST RECEIPTOR. 539 the whole property attached, yet if he substitute other property in lieu of that attached, which substituted property is sold and applied on execution, then whatever sum the property sold for should be applied to reduce the amount for which he is liable on his receipt.' § 284. (k) Judgment in an action against receiptor. — It is proper for the officer to recover of a delinquent receiptor, the full value of the property, and not merely the amount of the debt; because the officer is accountable to the debtor for the surplus.^ Even though a judgment to the amount of the judg- ment in attachment be sufficient to protect the creditor, the debtor's interest must be protected; for such debtor may, be- cause of neglect in taking judgment for the full value, bring an action of "case" for the deficiency.^ The measure of damages, when the property has been allowed to go back into the hands of the debtor, is the value of the property when the same is not more than the plaintiff's demand.* A judgment recovered by the creditor against the receiptor becomes a dead letter when- ever the debt is paid to the creditor, because the judgment against the receiptor is merely collateral to the debt. Its purpose is to secure the sheriff, and its force ceases when his liability to both the debtor and creditor ceases.^ Furthermore, equity will interfere and enjoin a suit brought against a receiptor for the amount of the property attached, after the judgment in the attachment suit has been paid by the execution debtor.® The amount of the judgment to be rendered in an action against the receiptor will depend, of course, upon the extent of the liability as determined by the courts in which the action is brought. The different degrees of liability have been pointed out hereinbefore and need not be reconsidered in this connec- tion. 1. Sewell V. Sowles, 13 Vt. 171. ceiptor if the property was delivered 2. Bissell V. Huntington, 2 N. H. to him by the debtor's consent. Bis- 142; CatUn v. Lowrey, 1 D. Chipman sell v. Huntington, 2 N. H. 142. (Vt.) 396. 3. Bissell v. Huntington, stij^ra. However, he is not accountable to 4. Cross v. Brown, 41 N. H. 283. the debtor until a reasonable' time has 5. Paddock v. Palmer, 19 Vt. 581. elapsed for recovering it of the re- 6. Paddock v. Palmer, 19 Vt. 581. 540 POSSESSION OF ATTACHED PROPERTY. § 285 When two writs are levied upon the same property and two receipts are taken by the attaching officer from the same receiptor, and on demand on one of the receipts the receiptor pays the amount of the judgment, he can, in an action on the second receipt, only be held for the amount of the property less the amount paid on the first judgment.^ § 285. Fees and costs of bailees. — While the very essence of the contracts of receipting for attached property is that the debtor in the attachment suit may be saved the expense of keeping the attached property, yet the costs and expenses of the bailees and agents of the attaching officer may be recovered against the defendant if the attachment is sustained, and against the plaintiff if it is not sustained as has been hereinbefore in- dicated. This is often provided for by special statute. In New York it has been said that, in a possessory action, if the defendant does not wish the expense of a keeper of attached property he should make application to the court for the with- drawal of the keeper, otherwise the attaching officer will be al- lowed entire keeper's costs. ^ In Massachusetts while the charges of a keeper or custodian are not legal fees included in the costs to be taxed, ^ yet a con- tract made with the keeper of attached property for their safe keeping is valid. The officer who makes the contract can not break it for the reason that he has no one to fall back upon for the payment of these services of the keeper.* 1. Haynes v. Tenney, 45 N. H. 183. 4. Stowe v. Buttrick, 125 Mass. 449. 2. The Canal Boat Independent, 9 As to the recovery of sheriff's fees, Ben. (U, S. Dist. of N. Y.) 489. see Gower v. Stevens, 19 Me. 92. 3. Cutter v. Howe, 122 Mass. 541. CHAPTER XIII. RELEASE OF POSSESSION OF ATTACHED PROPERTY. Part I. By Bond to Deliver Property. §286. Of bonds, generally. §294. 287. Sufficiency of delivery or forth- coming bond. 295. 288. Effect of the bond. 289. Return of the bond. 296. 290. Compliance with the covenant to return. 297. 291. When liability of the surety on the bond begins. 298. 292, When the habiUty of the surety on the bond is discharged. 299. 293. Eights of sureties on forth- 300. coming bond. 301. Action on a delivery bond. (a) Generally. (b) Necessity of fi. fa. or " rule to show cause." (c) Where the action shall be brought. (d) Parties to the action. (e) Plaintiff's pleading in the action. (f ) Evidence to sustain the action. (g) Defense to the action, (h) Judgment in action on forthcoming bond. Part II. By Bond to Pay Judgment. §302. 303. 304. 305. 306. General nature of the bond, and defendant's privilege in regard thereto. Sufficiency of the bond to pay judgment. Effect of the bond to pay judg- ment. When the liability of surety on bond to pay judgment be- gins. What will discharge the surety on the bond to pay the judg- ment. 307 308. 309. 310. 311. 312. Action on the bond to pay judgment. (a) Generally. (b) Form of the action. (c ) Parties to the action. (d) Plaintiff's pleading and proof in the action. (e) Defense to the action. (f ) Damages in an action on bond to pay judgment. Part I. By Bond to Deliver Property. § 286o Of bonds, generally. — In many states where no practice has been established of receipting for the property in (541) 542 RELEASE OF POSSESSION OF ATTACHED PROPERTY. § 286 the manner hereinbefore shown, special statutes have provided a means whereby a debtor, whose property has been seized by attachment, may at any time before final judgment, give a bond with sufficient surety, conditioned as required by such state, and have the possession of his property surrendered to him. It will be noticed that while the practice of receipting is founded wholly upon custom, the law, regarding bonds for the return of property attached, is wholly statutory, and that while the effect of the former is to continue the liability of the officer for the safe keeping of the property, the effect of the latter is to fix such responsibility upon the parties, principal and sure- ties, to the bond. The provisions and practice regarding bonds are far from uniform, but in general there are two kinds of bonds to pro- cure the release of property from the possession of the attach- ing officer. One kind contains the principal condition, that if judgment in the attachment suit be rendered against the de- fendant the property shall be forthcoming to satisfy the execu- tion on such judgment; otherwise that the sureties will be bounden to the extent, in some instances of the value of the property, and in other instances to the amount of the indebt- edness. These bonds are variously called ''bail bonds," ''forth- coming bonds," and "delivery bonds," Such bonds, of course, only release the property from the custody of the officer and do not release it from the lien of the attachment. Another class of bonds contains the principal condition that the defendant in the attachment suit will '* perform whatever judgment may be entered against him,'* in such attachment suit, and in default thereof, and, in the event that judgment is entered against such defendant, that the sureties will pay the amount thereof. A bond of this class not only releases the officer from further lia- bility as to the care and custody of the property, but also re- leases the property itself from the lien of such attachment; working an entire dissolution of the attachment so far as the property is concerned and thereafter the bond itself is held as a substitute of the oxs. Many states provide for the employment of one or the other e 286 OF BONDS, GENERALLY. 'J'*^ Of the above named kind of bonds, and in some states bonds are given with the alternate condition to return the property or pay the judgment. And since a bond for the release of prop- erty and payment of judgment in the event that judgment be entered against the defendant is similar in its nature to a bond given in a replevin suit, the statutes of some states provide that a replevin bond maybe given, usually in double the amount ot the plaintiff's demand or in double the value of the property at- tached and that thereupon the attached property shall be re- turned' to the possession of the attachment debtor. In Texas two ways are open to the defendant to procure the release of prop- erty which has been attached. ( 1 ) He has a right to replevy the property by giving bond with sureties for the amount of the debt or the value of the property, as he may choose, condi- tioned that he return the specific property in case he be unsuc- cessful in the suit, or (2) he may also, at any time before final judgment, upon giving special bail, with good and sufficient sureties for the amount of the debt and interest, recover the possession of the property so attached from the person m whose hands it may be,' but the giving of such special bail is an ap- pearance of the defendant and the suit thereafter proceeds as in ordinary cases. ^ When the property of joint debtors, tenants in common, or partners, has been attached, such property can not be released unless proper bonds be given by alL Bail can not be given for the discharge of the property belonging to one debtor when theproperty of two, as joint debtors, has been attached; for a discharge of the property of the one who has so given bond 1 Kennedy v. Morrison, 31 Tex. Chastain v. Armstrong, 85 Ala. 215; 2()7" Rhodes V. Smith, 66 Ala. 174; Corda- 2' Kennedy v. Morrison, 31 Tex„ man v. Malone, 63 Ala. 556; Agnew 207'. See further as to the giving of v. Leath, 63 Ala. 345; Sartin v. AVeir, the bond for the release of property 3 Stew. & P. (Ala.) 421. being a personal appearance, post, As to the practice in Tennessee, see " „"g" ^ Upton V. PhilHps, 11 Heisk. (Tenn.) As' to the practice in Alabama of 215; Boyd.. Buckingham, 10 Humph, giving a replevin bond for the release (Tenn.) 434; GiUaspie .. Clark 1 of attached property, see Roswald .. Tenn. 2; Richards . Craig 8 Bax er Hobbie, 85 Ala. 73, 4 So. Rep. 177; (Tenn.) 457; Connell *;.Scott, 5 Baxter 544 RELEASE OF POSSESSION OF ATTACHED PROPERTY. § 287 would also discharge the property of the other joint debtor who has not given bond.* § 287. Sufiiciency of delivery or forthcoming bond.— The statute providing for the release of attached property upon the giving of a sufficient bond, conditioned for the redelivery or forthcoming of the property when needed to satisfy the execu- tion issued upon a judgment obtained in favor of the plaintiff in the attachment suit, always provides that such bond may be given by the attachment defendant, and some statutes further ■permit it to be done by the person in whose possession the property is found. ^ Others permit a stranger to give it in the absence of the defendant,* when given for his bene- fit,* and still others that it may be given by a stranger though the defendant be not absent when the possession is thereby to be obtained for him.* In Georgia there is no statute authorizing an agent to execute a forthcoming bond for property levied upon by attachment, but where the bond was executed by the principal through his agent, the at- tachment creditor was permitted to recover when the allegation of such act was sustained by competent proof .^ And in Min- nesota the defendant alone is authorized to execute such bond and receive possession of the attached property. A stranger to the attachment suit can not do so even though he has an in- terest in the attached property.' But a bond can not be executed by a party not authorized by law to give such bond to the officer or plaintiff so as to consti- tute it an effective or a reliable security to such officer or (Tenn.) 595; Snell v. The State, 2 1. Magee ■;;. Callan, 4 Cranch C. Ct. Swau (Tenn.) 343: Hughes v. Tenni- 251. son, 3 Tenn. Ch'y. 641. 2. Kmg v. Hubbell, 42 Mich. 597. As to the practice in Georgia, see 3. Ehodes v. Smith, 66 Ala. 174; €raig v. Herring, 80 Ga. 709, 6 S. E. Cordaman v. Malone, 63 Ala. 556. Rep. 283 ; Irvin v. Howard, 37 Ga. 18. 4. Kirk v. Morris, 40 Ala. 225. And as to the practice in Mississippi, 5. Wheeler v. McDill, 51 Wis. 356. see Montague v. Gaddis, 37 Miss. 453 ; 6. Gilmer v. Allen, 9 Ga. 208. Gray v. Perkins, 12 Sm. & M. (Miss.) 7. Kling v. Childs, 30 Minn. 366. 622; Wharton v. Conger, 9 Sm. & M. three, the number of living defend- 175, 12 Abb. Pr. n. s. 324 ants. Thebond was quashed. Holt 4. Munter v. Eeese, 61 Ala. 395, V Lvnch, 18 W. Va. 567. Whitsett v. Womack, 8 Ala. 466^ In this case the amount due was 5. Ambach v. Armstrong, 29 W. not correctly stated and it was held to Va. 744, 3 S. E. Rep. 44. be not a material variance. Holt v. 6. Gilbert v. Anthony, 1 Yerger Lvnch, 18 W. Va. 567. (Tenn.) 69; Wynne .Governor, 1 "2 Ridley V. Gear, 58 Iowa 460. Yerger (Tenn.) 149 ; Hall v. Scales 7 In this case the writ was described Yerger (Tenn.) 409; Byer^/. J^^" as having issued from the circuit Clanahan, 6 Gill & J. (Md.; ^w, 550 RELEASE OF POSSESSION OF ATTACHED PROPERTY. § 288 It seems that there is no statutory provision or rule of court made to compel defendants in attachment to substitute new- sureties on the bond for the release of the property when the first sureties have become insolvent, and that the court has not the power to make such an order. ^ But in Georgia, when a garnishment has been dissolved by the principal defendants giving a bond, and it is thereafter made to apj)ear that the surety is insolvent and the security insufficient to protect the plaintiff, a second writ of garnishment may issue. ^ § 288. Effect of the bond. — "When the officer who has seized personal property on an attachment writ receives the bond which insures the safe keeping and faithful return of the prop- erty to him, if required, such officer must then deliver the property to the party giving such bond,' who will hold it as the bailee of the sheriff in most states; and in the states which consider him such a bailee, the property is still in contempla- tion of law in the possession of the officer in so far as to make the subsisting attachment a lien prior to subsequent attaching creditors. When the attached property is in the hands of such claimant under the bond for redelivery to the sheriff, the prop- erty is as free from the reach of other process as it would have been in the hands of the sheriff himself.* And a subsequent Perminter v. M'Daniel, 1 Hill (S. C.) 2. Stewart v. Dobbs, 39 Ga. 82. 267; Boydv. Boyd, 2 Nott & M. (S. 3. But although the officer is required C.) 125 ; United States v. Nelson, 2 to surrender the chattels on a bond Brock. (U. S. 4th Cir.) 64; Ay res v. being given, he is not required, at Harness, 1 Ohio 368; McKee r. Hicks, least in Rhode Island, to return them 2 Dev. (N. C.) L. 379. To the con- to the place from whence he removed trary, Wiley v. Moor, 17 Serg. & R. them. Clark v. Wilson, 14 R. I. 13. (Pa.) 438. See also Sigfried V. Levan, 4. Tyler v. Safford, 24 Kan. 580; 6 Serg. & R. (Pa.) 308 ; Franklin Bank Rives v. Wilborne, 6 Ala. 45 ; Corda- V. Bartlet, Wright (Ohio) 742. man v. Malone, 63 Ala. 556; Gass v. I.Dudley v. Goodrich, 16 How. Williams, 46 Ind. 253; Hobson v. (N. Y.) Pr. 189. Hall, (Ky.) 14 S. W. Rep. 958; Rob- But where the surety is not suffi- erts v. Dunn, 71 111. 46; Cole v. Smith, cient in the first instance (as where 83 Iowa 579, 50 N. W. Rep. 54; Gray v. one is a minor) it seems that an ad- Perkins, 20 Miss. (12 Sm. & M'.) 622; ditional surety may be ordered by the Hilton v. Ross, 9 Neb. 406; Montague court. Jewett v. Crane, 35 Barb. (N. v. Gaddis, 37 Mi^s. 453 ; Evans v. Y.) 208. King, 7 Mo. 411 ; Burch v. Watts, 37 § 288 EFFECT OF THE BOND. 5ol sale of such articles by the debtor gives the vendee no right against the attaching creditor.^ The power of the court over such property continues the same as if no bond had been given and the possession had never passed from officer.^ In the bonds to discharge the attachment, the power of the court and the officer over the property is lost, and the plaintiff can look for indemnity only to the bond, as will be shown in the second part of this chapter/ One statute requires the bond to be con- ditioned that the defendant will, on demand, redeliver such attached property so released to the proper officer to be applied to the payment of the judgment, and that in default thereo the defendant and sureties will pay to the plaintiff the full value of the property so released, and states in another section that the property shall be released from the attachment and de- livered upon the justification of the sureties in the undertaking. It seems that when live stock has been attached and the de- fendant files his delivery bond, with security, and it is accept- ed he is entitled to the possession of such live stock, without payment of the charges theretofore incurred^ for keeping the stock during the pendency of the attachment.' Much uncertainty exists as to what rights are waived by the attachment defendant when he gives a forthcoming bond for the release of property seized on attachment. And m the ma- jority of instances it seems that by executing a forthcoming bond to the sheriff the defendant thereby acknowledges the va- lidity and regularity of the attachment, and that he thereby waives his right to thereafter question it f that he can not there- Tex. 135; Drake ...Sworts, 24 Oregon 5. Milburn v. Marlow, 4 Greene 198, 33 Pac. Eep. 563; Schneider r. (Iowa) 17. Wallingford, 4 Colo. App. 150, 34 Pac. 6. Ferguson -• ^If e^'^"' f ^l' -R^^ -noq 195; Dierolf v. Wmterfield, 24 Wis. l' Woodman .. Trafton, 7 Me. (7 143; Paine .. Snell, 3 Mo. 409; New ^ 1 M-a Haven Lumber Co. v. Raymond, /b rBell :. Western River, etc., Co., Iowa 225, 40 N. W. Rep 820; M .. o Mpff. (Kv ) 558 Hutchinson, 14 How. 586 ; Pacific Nat. 3 Bell ..Western River, etc., Co., Bank .. Mixer, 124 U. S-J^l; Wolf .. 3 Mete. (Ky.)558; and po.s., § — • Cook, 40 Fed. Rep. 432; Barry v. 4. Henry v. Gold Park Mining Co., Foyles, 1 Peters 311. 3 McCrary (U. S. D. C.) 390. 552 RELEASE OF POSSESSION OF ATTACHED PROPERTY. § 288 after traverse the grounds alleged in the affidavit of the attach- ment by plea in abatement ;* or move to vacate the attachment on the ground that the property was not liable f or move to quash or vacate the attachment generally/ unless the attach- ment-defendant was not a party to such bond, in which case it in no manner affects his right to move to quash the writ* and of the right to claim the time allowed for appearing and an- swering in cases of service by publication f and of the objec- tion that no proper inventory was taken of the attached prop- erty in a state where such inventory is required.^ But in Missouri the attachment-defendant has the right, by plea, to traverse the ground on which it was issued, and to have it quashed if not issued on sufficient grounds.' Likewise in Ohio and Louisiana, the taking of possession of attached property upon a release bond is no waiver of the right to move to dis- solve it at any time before judgment, nor an estoppel from of- fering evidence to disprove the charges on which attachment was obtained.* The owner, in whose possession the property is found when attached, when such owner is another than the defendant in the attachment suit, may contest the levy.^ Whenever the attachment lien is dissolved by the giving of a bond by the attachment-defendant, the giving of such bond, of course, waives all technicalities in regard to the making of the levy, since the same is then immaterial because of the at- tachment being dissolved.^" The giving of a forthcoming bond, in some instances, seems 1. Hill V. Harding, 93 111. 77. 7. Montague v. Gaddis, 37 Miss. 2. Morrison v. Alphin, 23 Ark. 136. 463. 3. PaddocktJ. Matthews, 3 Mich. 18. 8. Ross v. Miller, etc., Co., 7 Ohio 4. Pierce v. Johnson, 93 Mich. 125, 53 Cir. Ct. Rep. 51 ; Avet v. Albo, 21 La. N.W.Rep. 16 ; Rippon Knitting Works Ann. 349. V. Johnson, 93 Mich. 129, 53 N.- W. 9. Schwein v. Sims, 2 Mete. (Ky.) Rep. 17; Mack v. Johnson, 93 Mich. 209; Halbert v. McCulloch, 3 Mete. 129, 53 N. W. Rep. 17; Leonard v. (Ky.) 456; Hilton v. Ross, 9 Neb. Johnson, 93 Mich. 129, 53 N. W. Rep. 406; Petring v. Chrisler, 90 Mo. 649; 17. Memphis Water Co. v. Magens, 15 5. Shields v. Barden, 6 Ark. 459. Lea (Tenn.) 37. 6. McRae V. Austin, 9 La. Ann. 10. See as to the " Effect of Dissolu- 360. tiod of the Attachment," post, § 326. § 288 EFFECT OF THE BOND. 555 to have the effect of a personal appearance in the suit. In Alabama, where such bond is a replevy bond, by the execution of it the defendant becomes a party to the suit and the bond is an admission of notice of the levy and of the suit, and if it be executed the certain number of days before the commence- ment of the term required for appearances, the court is author- ized to proceed to trial/ And such appearance is there, as well as in Mississippi, sufficient to sustain a judgment by default.' And in Missouri and Pennsylvania, after the giving of the forthcoming bond, the cause stands as though it had been com- menced by an ordinary summons.^ It is thereafter an action in personam and the judgment will be a general one.* The question seems not to have been decided in other states ; but where the bond is not for the return of the property, hXit for the performance of the judgment, and is executed by the de- fendant as principal, it is, as a matter of course, equivalent to a personal appearance in the suit.^ Whether or not the giving of a forthcoming bond and the taking of possession of the attached property by a stranger to the attachment suit, when he is permitted so to do, connects him in any way with the suit, and what such connection is, are questions that seem to have been given no one definite answer, although it has been said in Alabama that he holds for the de- fendant, ahd that his bond is subject to the same rules as if made by the defendant himself; and he is entitled to make all the defenses which the defendant could have made if he had been sued,' and, further, that he so far connects himself with the attachment suit that he must take notice of the judgment entered therein, and that while retaining the goods under the bond, he can not dispute or deny the title to the defendant ; 1 . Peebles v. Weir, 60 Ala. 413. 5. See further, post, § 304. 2 Chastain v. Armstrong, 85 Ala. 6. Rhodes v. Smith, 66 Ala. 174; 215; Wilkinson v. Patterson, 6 How. Kirk v. Morris, 40 Ala. 225; Morns u. (Miss.) 193; Richard v. Mooney, 39 Hall, 41 Ala. 510. Miss. 357. As to the rule in Kansas see Bowden 3 Payne v. Snell, 3 Mo. 409. v. Burnham, 59 Fed. Rep. 752, 8 Cir. 4. Bremner, Trucks & Co. v. Moyer, Ct. App. 248; Barnes v. Burnham, 59 98 Pa. St. 274; Blyler v. Kline, 64 Pa. Fed. Rep. 752, 8 Cir. Ct. App. 248. St. 130. 554 RELEASE OF POSSESSION OF ATTACHED PROPERTY. § § 289, 290 and if the title reside in him and the defendant be without an attachable interest therein, his title does not excuse him from the performances of the condition of his bond. He must first redeliver the goods, in compliance with his covenant in the bond, to answer the levy of the writ, and then he may after- wards interpose a claim of the property.^ But the law regard- ing the rights of third persons, who are usually called inter- veners, and who claim the attached property, will receive further consideration hereinafter.^ § 289. Eeturn of the bond. — It has been said that it is the duty of the officer who takes a bond for the return of the prop- erty and delivers it to the defendant, to return such bond with the other papers in the cause.^ But a failure to return it does not per se make the sheriff liable for the value of the property levied on. * Where the conditions of the bond are not complied with and the bond is therefor forfeited, it is the duty of the officer to make a return that such bond is forfeited, but it seems that he may as well do this on the execution as upon the bond itself,^ although it has been said in one case in Alabama that the sher- iff is not required to return the bond "forfeited," and that the obligee may maintain an action thereon without showing such a return.® § 290. Compliance with the covenant to return. — The con- ditions of a forthcoming or delivery bond contemplates the return of the property, not only for the benefit of the attaching creditor, but also for the benefit of the securities named in the bond, who are liable unless such return is made.'' The cove- nant in the bond to return requires an actual redelivery of the property attached to the officer who made such attachment; or by an offer to deliver, which offer can only be by bringing forward, pointing out and tendering the property to the I.Rhodes v. Smith, 66 Ala. 174; 5. Jones -y. Miss. & Ala. E. R. Co., Braley v. Clark, 22 Ala. 361 5 How. (Miss.^ 407. 2. See post, § 426. 6. Falls v. Weissinger, 11 Ala. 801. 3. Rhodes v. Smith, 66 Ala. 174. 7. McRae v.McClean, 3 Porter (Ala.) 4. Mason v. Watts, 7 Ala. 703. 138. § 290 COMPLIANCE WITH THE COVENANT TO RETURN. 555 officer/ The statement of a desire to redeliver the goods to the officer is not such a tender as will justify the covenant to return. As for example, telling the sheriff upon the street that the claimant wanted to deliver up the attached property, which consisted of a stock of goods, then in the possession of a third person under a conveyance from the claimant and others, did not alone constitute a delivery to the sheriff.' A delivery of a part only of the property does not discharge any part of the penalty, and if the condition of the bond be broken, the whole of the penalty may be recovered, provided the obligee is injured to that extent." The acceptance by the officer of a re- turn of a part of the property is no new undertaking on his part.* The property returned must be the identical property that was received from the officer, or there is no compliance with the terms of the bond. For example, a stock of groceries was attached and surrendered on a forthcoming bond. Some were sold and others of a perishable nature perished. All of the goods were replaced by others of the same kind. In an action on the bond it was held that the attached goods could not be substituted, and therefore that the bondsmen were liable for the whole stock, including the goods which perished.' How- ever, the creditor may consent to such a substitution, and thereby release the sureties to the extent of the value thereof.* Where the forthcoming or delivery bond contains two con- 1. Chapline B.Robertson, 44 Ark. In an action for a breach of such un- 202; Pogue v. Joyner, 7 Ark. 462; dertakmg, it was shown that a portion Cooper V. Peck, 22 Ala. 406. of the attached property was levied If, instead of making such a tender upon and sold by the sheriff under of the property, the property itself is an execution. The court then held withheld from the sheriff and a bond that the measure of damages was the tendered to him to try the right of the full value of the property attached, property in possession, the sheriff is less the proceeds of the sale. Metro- justified in returning^the bond " for- vich v. Jovovich, 58 Cal. 341. feited." Cooper v. Peck, 22 Ala. 406. 4. Brumby v. Barnard, 60 Ga. 292. 2. Garrity v. Thompson, 67 Tex. 1, 5. Pearce v. Maguire, 17 R. I. 61, 20 2 S. W. Rep. 750. Atl. Rep. 98. 3. Bland v. Creager, 13 B. Mon. 6. Milligan v. Vallee, 31 La. Ann. (Ky.) 509 ; Metrovich v. Jovovich, 58 375. See post, § 291. Cal. 341. 556 RELEASE OF POSSESSION OF ATTACHED PROPERTY. § 291 ditions, or rather, a condition to perform one of two acts, the performance of either will be a compliance with the require- ment of the bond.^ § 291. When liability of the surety on the bond begins. — The sureties on a bond given for the forthcoming of the prop- erty to satisfy the judgment which may be entered against the defendant become liable from the moment the defendant fails to return the released property to the officer, when the latter, on proper legal process, makes a demand upon him.^ And where the bond is conditioned that the defendant will appear to answer the plaintiff's demand and pay such judgment as shall be rendered, etc., the liability of the sureties to such bond attaches on the rendering of judgment, and without the issuing of an execution.' Until a verdict is rendered for the plaintiff in the attachment suit the sureties on the bond are in no dan- ger of judgment against them; their contract is only for a de- livery of the property, or the payment of its value, or the pay- ment of the judgment, as the case may be.* Where the statute provides that if an execution, issued upon the judgment ob- tained against the defendant, be returned unsatisfied, then the plaintiff may prosecute the undertaking, the liability of the sureties on an undertaking for the release of the property does not accrue until the return of the execution unsatisfied in the attachment suit.' The sureties on a bond against several defendants become liable when judgment is rendered againstone of them.® Where a bond is executed for the release of attached property by three persons as principals, and the bond is signed but by one of the principals, and by a surety, the liability of the surety can only be fixed by proof sufficient to destroy tlie presumption that he I.Reagan v. Kitchen, 3 Martin defense in the attachment suit, for the (La.) 418. action is not against them. Atkinsons. 2. Stewart v. Lacoume, 30 La. Ann. Foxworth, 53 Miss. 733. Part I, 157. 5. Brownlee v. Riffenburg, 95 CaL 3. Lincoln v. Beebe, 11 Ark. 697. 447, 30 Pac. Rep. 587. 4. Atkinson v. Foxworth, 53 Miss. 6. McCutcheon v. Weston, 65 CaL 733. 37. Hence they can not interpose any § 291 WHEN LIABILITY OF SURETY OF BOND BEGINS. 557 expected all the principals to be bound as such, or by proof to show that he would have recourse against them if he paid it.* And where a forthcoming bond has been signed by one surety and delivered to the principal as an escrow until signed by an- other surety, no liability can arise as against the surety who signed, unless the bond is signed by the other surety also.^ The liability of the sureties on a bond given for the return of attached proj)erty accrues at the time of the forfeiture of such bond. Therefore in a case where a bond was given for the re- delivery of a slave, and the slave died, after forfeiture of such bond, but before the commencement of an action upon such bond, it was held that such death afforded no bar to the plaint- iff's right of action.' Where a surety signs a bond conditioned that the defendant will return the property or perform the judgment which may be entered against him, such surety will become liable, unless one of the acts be performed, even though the performance of the other be rendered impossible.* For example, the accidental destruction by fire of the property named in such a delivery bond will not excuse the performance of the other condition.^ In another case one person brought an attachment against an- other and a levy was made upon a stallion. A third person claiming the horse got possession of it by giving a bond with surety that he would perform the judgment of the court or pro- duce the horse on the order of the court. "Judgment was rend- ered against the pretended title of the third party, who, with sureties, were held liable on their bond, notwithstanding the fact that the horse had died before judgment.^ The sureties on a delivery bond having become liable in the alternative to perform the judgment, are bound, notwithstand- ing the goods may be lost or destroyed.' 1. Clements v. Cassilly, 4 La. Ann. 5. Doggett, Bassett & Hill Co. v. 380. Black, 40 Fed. Rep. 439. 2. Sessions v. Jones, 6 How. (Miss.) 6. Dear v. Brannon, 4 Bush (Ky.) 123. 471. 3. Falls V. Weissinger, 11 Ala. 801. 7. Irvin v. Howard, 37 Ga. 18o 4. Goebel v. Stevenson, 35 Mich. 172. 558 RELEASE OF POSSESSION OF ATTACHED PROPERTY, § 292 If several attachments are brought by different creditors against the same goods and the defendant dissolves the attach- ment by giving a bond for the return of them or their value, and judgment is obtained by one of the creditors, the defend- ant will be compelled to comply with the conditions of his bond.^ A failure to deliver a part of attached property'' taken on the giving of a forthcoming bond is a forfeiture of the bond, but when, by special statute, the return of such bond forfeited has the effect of a judgment and authorizes the issuance of an exe- cution thereon for the amount of the recovery in the attach- ment suit, and if the failure to deliver such portion is occa- sioned by the act of the plaintiff, the statute will cease to apply, and the obligors by making default in delivering the residue can only be held liable for its value as at common law.^ If the judgment entered against the attachment defendant be merely a personal one, it will fully quash the attachment and release the property. No recovery can then be had against the surety on the bond given for the release of the attached prop- erty.' A bond given for the release of property, conditioned that the obligors shall pay to the attaching creditor such judgment as shall be rendered in his favor against them, will bind them to pay when a judgment is recovered in his favor, though not in form against them.* § 292. When the liability of the surety on the bond is dis- charged. — When the condition of the bond for the forthcom- ing of attached property has been fulfilled; that is to say when the property has been surrendered in the condition in which it was received; the sureties to a forthcoming bond are, as a mat- ter of course, discharged from further liability.* When the 1. Hanness v. Bonnell, 23 N. J. L. 4. Hunter v. McCraw, 32 Ala. 518. (3 Zab.) 159. See further as to the " Liability of 2. Dunlap v. Clements, 18 Ala. 778. Sureties on a Bond to Pay the Judg- 3. Wassonv. Cone, 86111. 46; Nalle ment," post, ^ 307 . V. Baird, 30 La. Ann., Part II, 1148; 5. Meyer v. Fletcher, 35 La. Ann. Rathbone v. Ship London, 6 La. Ann. 878. 439. § 292 WHEN LIABILITY OF THE SURETY CEASES. 559 bond is condition to perform one of two acts, the performance of either will discharge all the parties to it.* The law, pertaining to sureties on a forthcoming bond, is governed by the same rules that apply to sureties in other cases. They are only bound to the extent of their obligation and stand upon the very terms of their contract, consequently if the terms be changed without their consent they are released from liability.* An agreement by the creditor with his prin- cipal debtor for an extension of the time for payment will dis- charge the surety.^ And where the sheriff, directed by the plaintiff, puts off the sale of property taken on execution to a after the return day, and suffers it to remain in the possession of the principal defendant, the sureties are released if such di- rection be given without their concurrence.* A change in the extent of the obligation, as by the taking of a new surety by the officer, may release the obligors on a bond; for example, the plaintiff sued out an attachment and levied upon his debtor's property, which was in possession of persons claiming it under a prior sale. The claimants executed a re- plevy bond on the same day and the sheriff returned the prop- erty to them. On the next day the claimants made the re- quired affidavit and executed a claim, which was approved and accepted by the sheriff. It was held that the approval of the claim bond annulled the replevy bond.® Likewise the correction of a clerical error, without the knowl- edge of the surety on a forthcoming bond, when by such cor- rection a change is made in the obligation of the surety, will discharge him; as where, by a clerical error, a writ of attach- ment was made returnable on the 29th of September, in which month there was no term of court. The 29th of August being the date intended and a bond reciting that the writ was return- able "the 29th inst.," and afterwards by consent of all the parties except the sureties the writ was ordered to be made return- 1. Reagan u. Kitchen, 3 Martin (La.) 4. Bullitt v. Winston, 1 Munf. (Va.) 418. 269. 2. Quillen v. Arnold, 12 Nev. 234. 5. Roswald v. Hobble, 85 Ala, 73, 4 3. Harbert v. Dumont, 3 Ind. 346. So. Rep. 177. 560 RELEASE OF POSSESSION OF ATTACHED PROPERTY. § 292 able September 5th and was entered on that day, the sureties were discharged from the liability on the bond.^ The amendment of the attaching creditor's declaration, when the same increases the liability of the defendant and his sure- ties, may work a discharge of such sureties, who have given bond for the performance of the judgment to be obtained therein, if done without notice to them and without their knowledge or consent.^ But the amendment of one count of a declaration does not discharge the sureties from liability for the sum sued for in the other counts originally inserted in the w-rit and not affected by the amendment.^ But where, after a plea in abatement, a summons was amended by the stipulation of the parties, although without the consent of the sureties, it w^as said to be not a new action, but a continuance of the old one, holding the sureties still liable on a forthcoming bond theretofore given.* There is a diversity of opinion as to whether the discharge of one of several defendants in the attachment is such a change of the condition as to discharge the sureties on a bond given for the release of attached property. It is said in Massachu- setts that the result, so far as the sureties are concerned, is the same whether the plaintiff discontinues as to one of the defend- ants or fails to recover against him on the trial. No change is made in the nature of the claim which is the subject of the suit, and no greater or different liability is cast upon the sure- ties by the discontinuance.^ And the same principle is main- tained in Wisconsin.® But in Michigan, the principal executed a bond with sureties to the sheriff to prevent his re- moving certain property which had been seized under a writ of attachment, running against A, B and C. When the attach- ment suit was tried the plaintiff discontinued -as to A and B, and procured a judgment for the whole amount in controversy 1. Simeon v. Cramm, 121 Mass. 492. Seeley v. Brown, 14 Pick. (Mass.) 177 ; And this applies likewise to bonds Knight v. Dorr, 19 Pick. (Mass.) 48. to dissolve the attachment. See post, 4. Christal v. Kelly, 88 N. Y. 285. §306. 5. Poole v. Dyer, 123 Mass. 363; 2. Prince v. Clark, 127 Mass. 599. Sanderson v. Stevens, 116 Mass. 133. 3. Warren v. Lord, 131 Mass. 560; 6. Sutro v. Bigelow, 31 Wis. 527. § 292 WHEN LIABILITY OF THE SURETY CEASES. 561 against C. A suit was brought on the bond and the court held tliat by discontinuing the attachment as to two of the defendants, the sureties were discharged from liability/ Whether or not the adding of a party defendant effects such a change in the liability on the bond as to discharge a surety thereon, is likewise uncertain. In Massachusetts where the plaintiff discontinued as to one defendant, although he was not a party to the bond, and summoned a new defendant without notice to the surety, the bond was thereby discharged.^ But in New York when the defendant brought in was a partner of the defendants in the original suit, although brought in after the bond was given, it was held that the surety was not thereby discharged.^ The dissolution of the attachment, however, as a matter of course, works a discharge of the sureties to the forthcoming bond, for then all the proceedings in the attachment are quashed.* Where a levy on execution is abandoned and the principal debtor released, the sureties are discharged, if such abandon- ment was made without their consent.^ If, subsequent to the giving of the forthcoming bond, an execution be issued against the attaching creditor in favor of a third party, and the cred- itor gives his consent that the execution be levied upon the at- tached property, which is done, and the property is sold under such execution, the sureties on the forthcoming bond are dis- charged.^ In a case where the plaintiff, after having obtained judgment, released his lien upon part of the attached property in order that the defendant, who had a good opportunity to sell, should pay the plaintiff the purchase-money, it was held that such a release of part of the property, without the sureties' knowledge or consent, discharged such sureties pro tanto, be- 1. Andre v. Fitzhugh, 18 Mich. 93. Y.) 155; Higgins v. Healy, 47 N. Y. 2. Richards v. Storer, 114 Mass. Supr. Ct. (15 J. & S.) 207. 101; Tucker U.White, 5 Allen (Mass.) 4. Gass v. Williams, 46 Ind. 253; 322. Wilsons. Churchman, 4 La. Ann. 452. 3. Christal v. Kelly, 24 Hun (N. 5. Sherraden v. Parker, 24 Iowa, 28. 6. Jaeger v. Stoelting, 30 Ind. 341. Att. 36 562 RELEASE OF POSSESSION OF ATTACHED PROPERTY. § 292 cause he was thereby deprived of the benefits of that amount of the security held by him.' The payment of the judgment obtained in the attachment suit is, of course, a discharge of the sureties on the bond for the release of property in such attachment case.^ But the sat- isfaction of an execution issued on the judgment obtained in the attachment suit is not, of necessity, a satisfaction of the judgment and a discharge of the sureties on the forthcoming bond, because the creditor may be able to show that the satis- faction was acknowledged by mistake." A proper tender of the amount sufficient to satisfy the judg- ment obtained in the attachment suit, made by a surety on the undertaking, and a refusal by the obligee to accept such amount due, effects a complete discharge of such surety from all obli- gation on the undertaking, because a refusal to take the money when tendered may obstruct the surety in his remedy against the principal.* And sureties on an undertaking under seal in the common-law form, are discharged if the defendant in the attachment suit tenders to the plaintiff the amount of his de- mand and costs. It is not necessary that such tender be paid into the court, and such tender is sufficient though not kept good.^ Likewise where the principal in a forthcoming bond offers to deliver the property to the officer, who thereupon waives an actual delivery and stipulates that the obligor shall 1. Bedwell v. Gebhart, 67 Iowa 44. exoneration, and is entitled to con- The release of real estate from the tribution from his cosurety, but he the lien of the judgment or the dis- must also make his principal a party- charge of a levy whereby a hen on to his bill for contribution, or show property has been created will have why it would be fruitless to do so. this effect. Bedwell v. Gebhart, 67 Chrisman v. Jones, 34 Ark. 73. Iowa 44. 4. Hayes v. Josephi, 26 Cal. 535. 2. Boyd V. Buckingham, 10 Humph. 5. Curiae v. Packard, 29 Cal. 194. (Tenn.) 434; Chrisman ■«. Jones, 34 The same principle applies to the j^rk. 73. release of sureties on a forthcoming 3. Canfield v. Miller, 13 Gray, bond in this regard as to sureties on a (Mass.) 274. See also WoodiJ. Mann, bond to dissolve the attachment. 125 Mass. 319. Curiae v. Packard, 29 Cal. 194; and Where one of two sureties pays the see post, § 306. judgment, he is entitled to complete § 292 WHEN LIABILITY OF THE SURETY CEASES. 563 hold it for him^ the sureties on the bond are thereby released from liability.' Where a surety on the bond requests the creditor to proceed to collect the money from the principal, who is then solvent, and the creditor neglects or refuses to proceed, and the princi- pal afterwards becomes insolvent and unable to pay, the surety will be discharged.^ When no judgment is rendered in the attachment suit for the sale of the attached property, the sureties on the forthcoming bond are discharged, because the rendition of a personal judg- ment alone is equivalent to the dismissal of the attachment proceedings.' And where sureties on a delivery bond have surrendered their indemnity upon the faith of a personal judg- ment, which operates to dissolve the attachment, they can not be made liable thereof by the entry of a judgment nunc pro tunc for the sale of the attached property.* Whenever proceedings under a statute to discharge the lia- bility of insolvent debtors work a dissolution of the attachment theretofore begun, such insolvency or bankruptcy proceedings work a discharge of the liability of the sureties on a forthcom- ing bond given in such attachment proceedings.' Where the property, by operation of law, has ceased to reside in the attachment defendant, the sureties on a forthcoming bond are released from their liability thereon.® 1. Hansford v. Perrin, 6 B. Mon. 62 Barb. (N. Y.) 175, 12 Abb. Pr. (N. (Ky.) 595. Y.) n. s. 324; Carpenter v. Turrell, 2. Huffman v. Hulbert, 13 Wend. 100 Mass. 450; Holyoke v. Adams, 1 (N. Y.) 375. Hun (N. Y.) 223; McCombs v. Allen, 3. Smiths. Scott, 86 Ind. 346, Com- 82 N. Y. 114; New England, etc., Co. pare, Waynant v. Dodson, 12 Iowa v. Parker, 10 Gray (Mass.) 333. 22; Guay?;. Andrews, 8 La. Ann. 141. Neither the letter nor the policy of 4. Wright V. Manns, 111 Ind. 422, the statute (bankruptcy") is infringed 12 N. E. Rep. 160. by holding defendants liable under 5. Kaiser v. Richardson, 5 Daly their undertaking. Wolf v. Stix, 99 (N. Y.) 301 . U. S. 1 ; Cutter v. Evans, 115 Mass. 27 In the following cases the sureties Braley v. Booner, 116 Mass. 527 were not so discharged— McCombs v. Holyoke v. Adams, 59 N. Y. 233 Allen, 18 Hun (N. Y.) 190, 82 N. Y. Goodhue v. King, 55 Cal. 377. 114; Zailar v. Janvrin, 49 N. H. 114. 6. Green v. Lanier, 5 Heisk. (Tenn.) Coleman v. Bean, 3 Keyes (N. Y. Ct. 662. of Appeals) 94; Bildersee v. Aden, 564 RELEASE OF POSSESSION OF ATTACHED PROPERTY, § 293 Where property has been released on a forthcoming bond, and thereafter, pending the original attachment suit and after use by the defendant, the property is under order of court sold because of its perishable nature, the sureties on the forthcom- ing bond are not liable for any difference between the amount realized by the sale and value of the property as stipulated in the bond.' Where the property held under attachment has been released on the bond, the sureties on such bond can not be held in an action thereon for any balance of the attachment plaintiff's judgment which may remain unsatisfied in a case where property has been sold or destroyed by use, and other property of greater value has been accepted by the creditor and appropriated to the satisfaction of his judgment.^ The receiv- ing of other property in lieu of the proj^erty attached in a case like this is not in contradiction to the principle hereinbefore laid down^ that the identical property must be returned, for in this case the creditor saw fit to accept the substituted prop- erty and apply it to the satisfaction of his judgment. If a surety on a forthcoming bond has been, by misrepre- sentations of the officer, induced to sign the bond before the levy of attachment was made, he is not liable on such bond.* § 293. Rights of sureties on forthcoming bond. — AVhile it is not within the scope of this work to treat of the rights of sureties on bonds, their rights being similar to sureties on other bonds as pointed out in works on ''suretyship," yet it may be well enough to say that where the attached property has been delivered to their owner because of his having given a forthcoming bond, and the same property has afterwards been taken on an execution in a subsequent suit, the sureties on the forthcoming bond can not sustain an action of replevin against the officer who levied the execution,^ and that if one 1. Richards v. Craig, 8 Baxter 4. Connell v. Scott, 5 Baxter (Tenn.) 457. (Tenn.) 595. 2. Milligan v. Vallee, 31 La. Ann. 5. Stevenson v. Palmer, 14 Colo. 375. 565, 24 Pac. Rep. 5. 3. See ante, § 290. Such action must be brought by the owner. § 294 ACTION ON A DELIVERY BOND. 565 surety on such a bond j^ay the judgment rendered against the attachment debtor, he is entitled to an action for contribution from his cosurety on the release bond, when they are together liable for the payment of such judgment,' but he must make his principal a party to his bill for contribution or show cause why it would be fruitless to do so.^ § 294. Action on a delivery bond — (a) When it accrues. — The right of action of a judgment creditor in attachment against the surety on a delivery bond will be construed in subordination to what is found to be the general intent of the parties.' An action will not lie on a forthcoming bond until a final disposition of the case in which it was taken and the party has been remitted to his remedy on the bond.* But in Iowa it is not necessary that the judgment against the debtor should recite that the attachment is sustained, in order that the liability of the sureties on a delivery bond be fixed thereby.^ The officer has no right of action on a forthcoming bond until he has been held liable to an execution creditor for the value of the goods.* Where, however, the condition of the bond is, according to the statute, that the defendant will ap- pear and answer the plaintiff's demand and pay such judgment as shall be rendered, etc., the liability of the securities on such bond accrues on the rendition of the judgment, and they may be sued without the issue of an execution.' When, however, property in the hands of a third person has been attached and a bond given for its delivery ''when and 1. Lebeaume v. Sweepey, 17 Mo. turn that he could not find the princi- 153. pal, nor any other property of his, 2. Chrisman v. Jones, 34 Ark. 73. after diligent search and inquiry, and 3. Owen v. Homan, 3 Eng. L. &Eq. that plaintiff's counsel upon inquiry 112. could not give any information on 4. Hansford v. Perrin, 6 B. Mon. either subject, recourse may be had (Ky.) 595. upon the surety. McCloskey, etc., Co. 5. New Haven Lumber Co. v. Ray- v. Wingfield, 32 La. Ann. 38. mond, 76 Iowa 225, 40 N. W. Eep. 820. If one of the principals on the 6. Staats v. Herbert, 4 Del. Ch. 508. bond be dead, his succession need not 7. Lincoln v. Beebe, 11 Ark. 697; be pursued before moving against the Weed V. Dills, 34 Mo. 483. surety. McCloskey, etc., Co., v. Wing- If it be shown by the sheriff's re- field, 32 La. Ann. 38. 566 RELEASE OF POSSESSION OF ATTACHED PROPERTY. § 294 where the court shall direct," according to a statute, the judg- ment of the court against the attachment defendant and execu- tion issued thereon are not sufficient to render the obligors liable on the bond. There must be an order of the court for the delivery of the property in such case to render the obli- gors liable on the bond/ A demand on a forthcoming bond for the return of attached property is generally a prerequisite to the bringing of an action on such bond, and where the same is necessar}^ the officer is the right person to make the demand; but where the sureties have, by their own acts, made such demand useless, they are not released from their liability because no demand is made. The law does not require a demand in such cases. ^ If the bond, on which attached property was released, be conditioned that "defendant will, on demand, deliver such attached prop- erty, so released, to the proper officer," and the plaintiff has recovered a judgment in his attachment suit and thereafter makes a demand upon the defendant for the return of the property, an action will lie on the undertaking without demand being made by sheriff.^ Where a legal demand is made upon the person in possession of the attached property holding under a forthcoming bond, and he refuses to deliver the property, it is a forfeiture of tlie bond and constitutes a cause of action thereon.* Where the delivery bond given by the attachment defendant specifies a time and place for the delivery of the property which is the subject of the bond, the sheriff need not make any demand at such time and place as a prerequisite to 1. Bortherton v. Thomson, 11 Mo. was held that the obhgors were not 94. required to dehver the property 30 2. Driggs V. Harrington, 2 Mont. T. days after judgment without demand, 30. and that the obhgee, in order to sup- A joint and several bond having port an action on the bond, must been given to dissolve an attachment prove a demand upon one of them and of personal property conditioned to his refusal. Smith v. Jewell, 14 Gray deliver up the property "within 30 (Mass.) 222. days after the time of rendition of 3. Brownlee v. Riffenburg, 95 Cal. judgment in the action, free from ex- 447, 30 Pac. Rep. 587. pense to the plaintiff on a demand 4. Stinson v. Hall, 54 Ga. 676. after the rendition of judgment," it § 295 NECESSITY OF FI. FA., ETC. 567 an action on the bond. But where he desires a return of the property before the day agreed upon, a demand is necessary.' Where a third party has intervened and claimed the attached goods (as being the vendor having the right of stoppage in transitu) on intervention, he and his sureties will be bound to satisfy any judgment that may be obtained against the de- fendant, notwithstanding his bond may not have been made in conformity to law; and a return of the execution nulla bona issued against the attachment defendant is sufficient to render the surety upon such intervener's release bond liable."^ §295. (b) Necessity of fi. fa. or "rule to show cause."— Although the bond be forfeited, no judgment can be entered upon it in the main case unless there is a special provision made by the statute. There must be an action upon the bond." And under -some statutes permitting judgment in the main case to be entered against the surety on the bond for the forth- coming of attached property, it is held he ought to be made to respond to a rule upon him to show cause why he should not pay the judgment.* And that such judgment will not be en- tered against him on mere motion, or on trial of the main case.* In Louisana it is said that in the case of bonds of this nature the creditor can not ask judgment by rule against the surety without a "fi. fa.," or at least, a putting in default of, the principal.^ However, in Texas, under a statute providing that w^here the plaintiff recovers judgment in such attachment, judgment shall be entered against the defendant and his sure- ties on the replevin bond, an action was brought on a veri- fied account ; the defendant was served with process ; he re- plevied the property but did not appear, and the court held that it was proper that judgment on the account should be entered against the defendant and sureties on the replevin bond, without further evidence in proof of the account or fore- 1. Hunter i;. Brown, 68 Ind. 225. 354; Hansford v. Perrin, 6 B. Mon. 2. Emanuel v. Mann, 14 La. Ann. (Ky.) 595. 53_ 5. Clary v. Haines, 61 Va. 520. 3. Clary v. Haines, 61 Ga. 520. 6. Goodman v. Allen, 6 La. Ann. 4. Moon y. Story, 2 B. Mon. (Ky.) 371. 568 RELEASE OF POSSESSION OF ATTACHED PROPERTY. §§ 296, 297 closure of the attachment lien.^ The recovery of judgment in these cases is a similar proceeding to that upon "bond for the payment of the judgment" in the attachment.^ § 296. (c) Where the action shall be brought. — It is said in Louisiana that where one is in possession of attached property under a forthcoming bond in one court he can not be sued in another court for its possession, nor can any other court inquire collaterally into the A^alidity of the bond.' In Kentucky where an attachment was maintained in a chancery court, and the possession of the property retained on the giving of a forth- coming bond, and decree obtained against the attachment debtor, it was said that the chancellor might require, by rule and at- tachment, that the obligors in the bond produce the property, or decree against them the payment of its value ; or that he might remit the plaintiff to his remedy at law on the bond.* In Wisconsin where the marshal of the district attached propert}' at the suit of creditors in New York, and then sur- rendered possession of it upon the execution of a bond to him- self, for the use of those creditors, it was said to be within the* jurisdiction of the district court of the United States for Wis- consin, to entertain a suit upon the bond begun by such mar- shal in behalf of the New York creditors against the claimants in Wisconsin, althou-gh both parties reside in the state of New York.' § 297. (d) Parties to the action. — The various state statutes permitting actions to be brought in the name of the party in interest will, of course, have to do in determining who is the proper party plaintiff in an action on a forthcoming bond. And these statutes must be considered in connection with what is hereinafter said. In Michigan, where the delivery bond is re- quired to run to the sheriff himself, who holds it in trust, it is 1. Yogt V. Dorsey, 85 Tex. 90, 19 S. 4. Hansford v. Perrin. 6 B. Mon. W. Rep. 1033. (Ky.) 595. 2. See post, § 307-9. 5 Huff v. Hutchinson, 14 How. (U. 3. Tucker v. Musselman, 6 La. Ann. S.) 586. 226. ^ 297 PARTIES TO THE ACTION. 569 said that the attachment pL^intiff has no right to sue on it or to transfer it before failure of execution and then only in the name of the sheriff, unless the sheriff has assigned the bond to him.' But the plaintiff may require such assignment as a matter of right.' In Alabama, likewise, the bond is properly made payable to the sheriff, but when assigned to the plaintiff he may sue on it." And also in Missouri, where the property taken upon the giving of a forthcoming bond to the officer is not produced in compliance with the judgment and order of the court, the plaintiff can not begin an action on the bond, either by motion or suit, until the same has been duly as- signed to him.* In Illinois also, such bond may be assigned to^he plaintiff.' And where a sheriff does not assign the same to the plaintiff in the attachment, by the practice in that state, a suit thereon may be brought in the name of the sheriff " for the use " of such plaintiff.' Furthermore, where a creditor has procured a void attachment to issue because no sufficient bond had been given, and a stranger claimed the property and executed the forthcoming bond, the plaintiff , being a trespasser in taking the property, can not maintain an action on such bond.' In Louisiana it has been said that abend, containing distinct obligations to perform different things in favor of two different persons, gives each obligee a distinct and separate remedy, but that where one plaintiff proceeds against the sureties before any decision on the claim of the other, he could only recover one- half the amount of the bond, reserving his right to recover the balance in case the plaintiff in the other action can be de- feated.' Under an Ohio statute and also under an Indiana statute, where the bond was given for the possession and delivery of 1. Forrest v. O'Donnell, 42 Mich. 6. Young v. Campbell, 10 111. (5 Gil- 556; Wilson v. Donnelly, (K. I.) 31 man) 80. Atl. Rep. 966. 7. Homan v. Brinckerhoff, 1 Denio. 2. Dorr v. Clark, 7 Mich. 310. (N. Y.) 184. 3. Adkinsi).Allen,l Stew. (Ala.) 310. S.Irish v. Wright, 12 Rob. (La.) 4. McDowell v. Morgan, 33 Mo. 555. 563. 5. Carpenter v. Hoyt, 17 111. 529. 570 RELEASE OF POSSESSION OF ATTACHED PROPERTY. § 298 attached property, to the sheriff, it enured to the benefit of all the creditors who attached during the pendency of that suit, while the goods were constructively in the hands of the sheriff, and who were afterwards adjudged entitled to participate in the proceeds. Each attaching creditor acquired an interest in such bond for the satisfaction of his judgment and all of the attach- ing creditors were properly joined as plaintiffs in a suit on such bond.^ In Kentucky in an attachment in chancery the chancellor may proceed by attachment against the obligors in a forthcom- ing bond; but not against the surety alone, when the principal is within the jurisdiction of the court. ^ In Arkansas if an at- tachment has been discharged by the defendant having exe- cuted the required bond, and he thereafter appeals with super- sedeas from a judgment rendered against him in the cause, and judgment is then rendered against him and the sureties on his appeal bond ,in the Appellate Court, the plaintiff can then elect to proceed either by execution under the judgment against the defendant and sureties on the appeal bond, or he may sue the sureties on the bond given to discharge the attachment.^ § 298. (e) Plaintifi's pleading in action. — When an action is brought upon the bond given for the return of the attached property, it is not necessary that the proceedings in attachment be fully set out or made a part of the declaration; for the at- tachment proceedings are not the foundation of an action on the bond. But the declaration or complaint must fully set out the undertaking and show that a case arose in which it was properly taken.* And in a suit on a bond conditioned for the delivery of the property or the satisfaction of the judgment which may be obtained in the attachment, if there is no alle- 1. Rutledge v. Corbin, 10 Ohio St. 2. Page v. Long. 4 B. Men. (Ky.) 478; Moore v. Jackson, 35 Ind. 360. 121. If they refuse to join, they should 3. Chrisman v. Eogers, 30 Ark. 351. be made defendants and the reason See further as to "Action on a Bond stated in the complaint. Moore v. given to Dissolve an Attachment," Jackson, 35 Ind. 360. post, § 307-9. 4. Dunn v. Crocker, 22 Ind. 324. § 299 EVIDENCE TO SUSTAIX THE ACTION, 571 gation that an execution has been issued and that the sheriff has demanded the property or the payment of the judgment and costs to the extent of the appraised vahaCj it will be demur- rable/ But where a declaration in an action on a forthcoming bond averred that the defendant did not have the property ac- cording to the tenor and effect of the bond, but wholly and to- tally failed and neglected and refused to do so, the court said there was a sufficient allegation of a breach of the condition ho entitle the plaintiff to recover.^ § 299. (f ) Evidence to sustain the action. — In an action on a bond given for the release of attached property it is unneces- sary in most states to prove that a levy was made upon the property. The bond admits this fact,* It is a rule of almost universal application that the defendant in an action on such bond is estopped from denying any fact recited in such under- taking.* When a forthcoming bond is executed, received and returned by the sheriff, that is at least prima facie evidence that the statute has been complied with.^ The sheriff's return upon a forthcoming bond is not conclusive, but only prima facie evidence.® It is the seizure of the levying officer which, consti- tutes the levy on personalty, and the entry is merely his de- scription thereof. Therefore, in an action on a forthcoming bond given in an attachment where the sheriff's return de- scribed certain articles in a house and made mention of all other goods therein, the evidence need not be restricted to the articles particularly described in the levy.' And in such an 1. Wright V, Manns, 111 Ind. 422, eucli bond need not aver that the 12 N. E. Rep. 160. value of the property was fixed by ap- But this rule does not apply where praisement or agreement. Woodward the sureties are rendered liable by the v. Adams, 9 Iowa 474. rendition of a judgment alone, no de- 3. Crisman v. Matthews, 2 111. 148. mand on execution being then neces- 4. Higgins" v, Healy, 47 N. Y. Su- sary. See s?(;)?'«, § 291. perior Ct. 207. 2. Young V. Campbell, 10 111. 80. But see further as to "Matter of When the statute does not require Defense to the Action," post, § 300. an appraisement of the property prior 5. Woodward v. Adams, 9 Iowa 474. to the making of a bond for its re- 6. Adler v. Green, 18 W. Ya. 201. lease, the plaintiff in an action on 7. Hart v. Thomas, 75 Ga. 529. 572 RELEASE 01 POSSESSION OF ATTACHED PROPERTY. § 299 action, which avers a levy on the property attached, it is not necessary that the plaintiff introduced the attachment in evi- dence, where he has introduced the fi. fa. which issued on the judgment in attachment and was returned nulla bona; nor is it necessary to introduce the judgment itself where the /i. fa. shows the amount recovered by it.^ The fact that an attachment was made must be proved, in Kentucky, in order to show that there was a consideration for the giving of the bond.^ But it is not necessary to prove the ground on which the writ was issued where the attachment has been sustained by an amended affidavit setting up other grounds filed after the sureties have sold the goods and applied the pro- ceeds to the satisfaction of a debt due them. The attachment being sustained, the sureties are liable.^ For a like reason, it is necessary, at least in Kansas, to prove that the property was in fact returned to the defendant, or there can be no recovery.* A declaration in debt on a bond given by the attachment de- fendant averred the death of the defendant before judgment, and that his administrator had been made defendant and judg- ment rendered against him. A plea was filed denying that there had been a judgment against defendant in his lifetime, or against his legal representative afterwards. And it was held that the transcript of the justice of the peace which showed a juGf^ment in the attachment suit against the defendant in his individual capacity would not sustain the declaration.* Under a statute which provides that where the plaintiff re- covers a verdict in the attachment suit, judgment shall be entered against the defendant and his sureties on the replevin bond, it was held that where, in an attachment on a verified account J the defendant was served with process, but did not appear after replevying the property, it was proper to enter 1. Doyal V. Johns, 90 Ga. 188, 15 S. the consideration. See post, § 300, E. Rep. 776. 3. Hobson v. Hall, (Ky.) 14 S. W. 2. As to the evidence the defendant Eep. 958. may introduce to show the invalidity 4. McGonigle v. Gordon, 11 Kan. of the attachment, and that in conse- 167; Couse v. Phelps, 12 Kan. 153 quence thereof the bond was without 5. Butler v. Wilson, 10 Ark. 313 § 300 DEFENSE TO THE ACTION. 573 judgment on the account against the defendant and his sure- ties on the replevin bond without the introduction of other evidence.' In an action on a forthcoming bond, in Arkansas, given by the defendant in an attachment suit before a justice of the peace, it seems the transcript of such justice will be incompe- tent evidence if it fails to show that the cause of action was filed before the writ issued; or if it fails to have in it a copy of the affidavit required to support the suit. A recital of the sub- stance of it is not sufficient, but if such record shows that the cause of action was filed on the same day the writ issued, it will be presumed that it was filed before the writ issued.^ In Minnesota, where personal property owned by one person was attached at the suit of several creditors and was then sold by the attachment defendant to another person, who obtained its release by promising to pay the creditors as soon as he received the money for the property, it was shown that the property was delivered to him and that he went to the town where the property was sold and that the property was sold at that time, and that he made payment to one of the attaching creditors. The court presumed, in the absence of evidence to the con- trary, that the property had been sold by his orders and that he had received pay for it, and sustained an action against him on his promise.*^ The fact that the attachment debtor has executed a forth- coming bond is sufficient presumptive evidence that the prop- erty was found by the sheriff in the possession of such attach- ment defendant." § 30C. (g) Defense to the action.— The surety on a bond for the release of attached property can set up no ground of de- fense to the judgment rendered against his principal which the principal himself could not set up.* He can not deny that the plaintiff did not own the claim, for the collection of which the 1. Vogt V. Dorsey, 85 Tex. 90, 19 S. 4. Hoshaw v. Gullett, 53 Mo. 208. TV, Rep. 1033. 5. McCloskey v. Wingfleld, 32 La. 2. Butler v. Wilson, 10 Ark. 313. Ann. 38. 3. Brewster v, Leith, 1 Minn. 56. 574 RELEASE OF POSSESSION OF ATTACHED PROPERTY, § 300 attachment suit was brought.* And although gross irregulari- ties precede the judgment, the sureties on a forthcoming bond must nevertheless produce the property or must satisfy the judgment on failure so to do.^ Nor can he set up in defense any matter which has been waived by the giving of the bond, as hereinbefore shown.' Or by the payment of the value of the property, as the case may be. And though the bond may have been given in a suit begun against two defendants, it is no defense to an action on the bond that the judgment in the at- tachment suit was entered against the one defendant only.* But if the judgment in the attachment suit has been rendered against a different principal than the one in whose behalf the bond was executed, that fact will be a good defense in an action on the bond. As for example, where there was a substitu- tion of defendants in the attachment suit after the bond was given. ^ It is a well settled rule in most states that in an action on an undertaking for the forthcoming of attached property, defend- ants are estopped from denying any fact recited in the under- taking.® Therefore the defendant can not deny the fact that an attachment issued,' nor that the goods were attached.* Nor can he deny the sufficiency of the ground for obtaining the order of attachment, nor the liability of the property levied on f He is estopped from denying the ownership of the property ;'" nor 1. McCloskey v. Wingfield, 32 La. Where a sale of attached property is Ann. 38. not made on a day required by a stat- 2. Kirkland v. Boyle, 7 La. Ann. utory bond for want of bidders, the 369. taking of a second bond is proper, and 3. See ante, § 288. is conclusive evidence of the perform- 4. Reynolds v. Hurst, 18 W. Va. 648. ance of the condition of the first 5. Adams v. Jacoway, 34 Ark. 542. bond. Adler v. Green, 18 W. Va. 201, 6. Higgins v. Healy, 47 N. Y. Supr. 7. Coleman v. Bean, 1 Abb. (N. Y.) Ct. 207; Fenner v. Boutte, (Miss.) 16 App. Dec. 394. So. Rep. 259. 8. Crisman v. Matthews, 2 111. 148. In an action on a forfeited delivery 9. Hazelrigg v. Donaldson, 2 Mete, bond, the defendant can not plead the (Ky.) 445; Higdon b. -Vaughn, 58 fact that after the forfeiture the de- Miss. 572. fendant sued out an alias fi. fa. that 10. Wallace v. Truesdell, 6 Pick, the property first seized had been 455 ; Johns, v. Church, 12 Pick. 557 ; levied upon under it but returned to Robinson v. Mansfield, 13 Pick. 139. the defendant by the plaintiff's order. After judgment has been entered Sullivan v. Pierce, 10 Ark. 500. § 300 DEFENSE TO THE ACTION. 575 can he deny the validity of the officer's levy.* A defendant having, by his voluntary act, induced the sheriff to rely and act upon the validity and sufficiency of his levy, he can not thereafter prejudice the officer by contesting its validity on ground inconsistent with the truth of his admissions contained m the undertaking.^ Nor can the sureties on a forthcoming bond in an action against them after default has been made by their principal in a covenant of such bond be heard to deny their liability on the grounds that the sheriff who made the levy had not the authority so to do.** But the jurisdiction of the court in making such attachment may be denied by the obligors under proper pleading in an action on the bond given for the release of the attached prop- erty, brought after judgment against the defendant in the at- tachment suit. The fact that the attachment was issued upon a false or defective affidavit is a good defense in such action since, in such case, the court was without consideration.* And the affidavit itself may be offered in evidence in such case for the purpose of showing that it was false.® This rule is not in contradiction with the one which states that the sureties can sustaining an attachment, the sureties a plea of non est factum. The court can not discharge their liabiUtyby as- held that the second surety was liable serting that the property was pur- at common law because it was no fault chased with money they had advanced of the plaintiff that the name of the to the debtor, and was not subject to first surety was improperly attached such attachment. Hobson v. Hall, to the bond. Cook v. Boyd, 16 B. (Ky.) 14 S. W. Rep. 958. Mon. (Ky.) 556. Where an attachment was sued out 1. Scanlan, v. O'Brien, 21 Minn, and delivered to the sheriff, who re- 434. ceived an offer from the defendant of 2. Easton v, Goodwin, 22 Minn, a l)ond with one name appearing as 426; People v, Reeder, 25N. Y. 302; surety, conditioned to perform the Dezell v. Odell, 3 Hill (N. Y.)215; judgment of the court, which the Scanlan v. O'Brien, swpm; Haxtun v. sheriff refused to accept without Sizer, 23 Kan, 310. further surety, when a second surety 3. Abbott Williams, 15 Colo. 512, was procured to sign the bond and it 25 Pac. Rep. 450. was accepted by the sheriff, the de- 4. Murphy v. Montandon, 2 Idaho fendant retaining the property; judg- 1048, 29 Pac. Rep. 851. ment was obtained in the action ; an 5. Murphy v. Montandon, 2 Idaho action was brought upon the bond; 1048, 29 Pac. Rep. 851. the first surety named was released on 576 RELEASE OF POSSESSION OF ATTACHED PROPERTY. § oOO set up no defense which is not open to their principal, because it is a rule of universal application that the want of jurisdic- tion may be taken advantage of at any time even in a collateral proceeding, but this rule still holds good and if such want of jurisdiction could not be made available by the attachment defendant himself it can not be taken advantage of by the sure- ties on the bond. Therefore where an action is brought against the sureties upon a bond given to release the attachment from goods levied upon, the defendants in such suit can not offer in defense the fact that the afifidavit for the writ was defective, when the attachment defendant, having been personally served, did not question the sufficiency of such affidavit in the attach- ment cause, but suffered judgment to be entered against him ; and where the defendants to the suit on the bond have ex- pressly stipulated that the attachment was begun in due form of law.^ By showing the invalidity of the attachment in de- fense to a suit on the forthcoming bond, tlie parties to such bond do not prejudice the officer, for if the attachment be proved invalid, the officer will be no longer liable to tlie attach- ment creditor and hence this rule does hot conflict with the one above stated. In Illinois and Michigan a surety on a bond given for the release attached property can not set up as matter of defense, and thereby discharge himself from liability, the fact that the property did not belong to the defendants in the attachment, or that it was unencumbered.^ The court in one case asking what business it is to the surety if the property did belong to a third person, and saying that by the execution of the bond the parties thereto become the custodian of the property for the sheriff and bound to him to keep it in good faith, as stipu- lated.^ Likewise in Missouri a person who has, in an attach- ment suit against another, given a bond conditioned that the attached property should be forthcoming, will be estopped, after judgment against the defendant in the attachment, from 1. Goebel v. Stevenson, 35 Mich. Dehler v. Held, 50 111. 491 ; Dorr v. 172. Clark, 7 Mich. 310. 2. Gray v. MacLean, 17 111. 404; 3. Gray v. MacLean, 17 111. 404. § 300 DEFENSE TO THE ACTION. 577 interpleading and claiming the ]3roperty as his own.* But in Georgia and Louisiana, in an action on a forthcoming bond, he may release himself by showing that the attached property be- longed to another than the attaching defendant.^ Such a de- fense is also available in Iowa; but under the rule requir- ing the defendant to plead and defend, a plea averring that at the time of the levy the property did not belong to the attach- ment defendant will not be sufficient unless it also states who is the owner of the proj^erty.' Where the bond given for the release of attached property contains the alternate condition to redeliver the property to the attaching officer, or pay on demand, the appraised value of the property, or the amount of the judgment, as the case may be, an inability to redeliver such property — as by the accidental destruction of the property by fire — is no defense to an action on such bond.* It is no defense to an action against the obli- gors on a forthcoming bond that after judgment and execution were obtained against the attachment-defendant, they point out to the plaintiff the proj)erty of the defendant upon which his execution could have been levied. ° Nor is it a defense to an action on a common-law bond, given for the return of attached property, that the day of delivery is different from the day of sale mentioned in the bond, but it may be in an action on a statutory bond.® Where an injunction nas been sued out to restrain the en- forcement of the execution, it wdll be an excuse for not deliv 1. McElfatrick v. Macauley, 15 Mo. the rooms, where the property, con- App. 102. sisting principally of house furniture, 2. Lackey v. Mize, 75 Ga. 692; is situate, and the execution debtor Schlater v. Broaddus, 3 Martin, n. s. makes no effort to prevent the sale, (La.) 321. there is a delivery of the property suf- 3. Blatohley v. Adair, 5 Iowa 545. ficient to satisfy the condition of the 4. Doggett, Bassett and Hills Co. -y. bond, notwithstanding the fact that Black, 40 Fed. Rep. 439; Goebel v. the debtor may claim that all the prop- Stevenson, 35 Mich. 172. erty is exempt from sale and that third 5. Hill V. Merle, 10 La. 108. persons may claim part of the prop- 6. Adler v. Green, 18 W. Va. 201. erty as their own. Adler v. Green, 18 If, on the date of sale and at the W. Va. 201. place of sale, the officer goes through Att. 37 578 RELEASE OF POSSESSION OF ATTACHED PROPERTY. § 300 ering the attached property when demanded on execution, and such refusal will not be a forfeiture of the bond.* An off-set may be properly claimed in an action on a forth- coming bond, or application made in satisfaction of the judg- ment to be entered, when a part or the whole of the property, or of other property accepted in lieu of it, has been applied to the satisfaction or partial satisfaction of the judgment.^ When the property, which is the subject of the forthcoming bond, has been taken to satisfy prior liens, so that the obligors can not produce such property, then in an action against them on such bond they may off-set the plaintiff's demand by showing that the j)roperty was not more than sufficient to satisfy the prior liens upon it and will then only be liable for nominal damages.' And where part of the property mentioned in a forthcoming bond has been, by the attaching officer, applied to the sat- isfaction of any process in his hands and he has thereby pre- vented compliance with the condition of the bond, it works a discharge of the obligors to the extent of the property sold. And this even though applied on a process running against the defendant himself.* And even though a special statute may give to the return of a forthcoming bond forfeited the force and effect of a judgment and authorized issuance of an execu- tion thereon for the amount of the recovery in the attachment suit, such application of property by the officer may be shown as an off-set thereto. Such a statute is intended merely to pro- vide a summary remedy, and not to deprive the obligors of any defense which they might have set up against the bonds at common law.* Where the attachment plaintiff brings an ac- tion on the bond for the return of the- property, it is no defense thereto that after the giving of such bond the sheriff refused to surrender such property to the obligors and retained posses- sion thereof himself. Such possession by the sheriff was wrongful and not for the plaintiff, and hence is only available in an action by or against such sheriff.^ Furthermore, if the 1. Hull V. Bloss, 27 W. Va. 654. 5. Dunlap v. Clements, 18 Ala. 778. 2. Munter V. Leinkauff, 78 Ala. 546. 6. Gardner v. Donnelly, 86 Cal. 367, 3. Hayman v. Hallam, 79 Ky. 389. 24 Pac. Rep. 1072. 4 Dunlap v. Clements, 18 Ala. 778, § 300 DEFENSE TO THE ACTION. 579 sureties on the replevin bond were fraudulently induced by the sheriff to sign it when they thought they were signing a bond for the forthcoming of the attached property, the plaintiff not uniting in the fraud and the bond being that required by the statute, the sureties will not be discharged from their liability on the bond, but may have redress against the sheriff.^ Neither can the sureties on the bond for possession complain that the attachment bond was not executed by the attachment plaintiff but by his attorney in his behalf where no objection was raised, because thereof, in the attachment suit,^ Any fact or circumstance which will discharge the surety on the bond as hereinbefore shown,' may of course be relied upon by him should an action be brought against him on the bond, but since his liability accrues at the time of default of the con- ditions of the bond, regardless of the time suit is begun, he can not avail himself of any matter arising subsequent to such forfeiture, even though prior to the commencement of the ac- tion on the bond.'* Where the parties defendant in the action on the bond are not the same, but the same in number as the defendants against whom judgment was rendered in the attach- ment suit, this fact may in some states be shown as a complete defense.' Where a person has claimed the attached property as his own, and has obtained possession of it by giving a forthcoming bond, and an action is thereafter brought upon such bond, he may plead in bar of such action the fact that he has inter- 1. Craig V. Herring, 80 Ga« 709, 6 S„ 5. See ante, § 297. E. Rep. 283. Where an execution was issued in 2. Craig v. Herring, 80 Ga, 709, 6 S, the names of all the defendants, which E. Rep. 283. was proper, although one of them was This decision was rendered under a dead, and the clerk indorsed thereon code providing that judgment may be that the one had "departed this life," taken against the defendant and his and a forthcoming bond taken on the sureties, and the sureties be bound execution, recited that it was against thereby, although they were not served three, which was the number of living with process and had not appeared to defendants, it was held that there was defend. Craig v. Herring, 80 Ga. 709, a material variance in the bond, and 6 S. E. Rep. 283. that it should be quashed therefor. 3. See ante, § 292. Holt v. Lynch, 18 W. Va. 567. 4. Falls V. Weissinger, 11 Ala. 801. 580 RELEASE OF POSSESSION OF ATTACHED PROPERTY. § 301 pleaded in the main action and claimed the property and that the jury has found for him, if such be the fact, and such find- ing will be a good defense for not surrendering the property/ One who has intervened in the attachment suit and obtained pos- session of the attached property is thereafter estopped from de- nying the fact that the property has been attached. By the giving of the bond he judicially admitted the fact of the attach- ment.^ § 301. (h) Judo:ment in action on forthcoming bond. — The time when an action may be brought upon the bond given for the return of attached property, as hereinbefore mentioned,' will determine when a judgment may be obtained against the parties to such bond, for, of course, no valid judgment can be entered where a cause of action has not accrued. Hence, a judgment against sureties on a bond given for the release of attached property rendered before a judgment against the de- fendant upon the cause of action for which the suit is brought, is void.* The amount for which a judgment should be entered in an action on a bond given for the release of attached property, is a question of much importance, and one that is not always easy to determine. It will, of course, largely depend upon the tenure of the bond itself. If the covenant be for the return of the property alone, a breach of such covenant will entitled the obligee to recover the value of the property at the time of de- fault.* But if there be the alternate undertaking to pay the 1. Purcell V. Steele, 12 111. 93. Cadden, 54 Ark. 13, 14 S. W. Rep. 2. Frost V. White, 14 La. Ann. 140. 1095. See further, as to this rule of admis- 5. Collins v. Mitchell, 3 Fla. 4; Hun- sion, ante, § 288. ter v. Brown, 68 Ind. 225. 3. See ayite, § 294. The judgment against the sureties 4. Morning v. Alexander, 10 Heisk. on the statutory bond in Arkansas (Tenn.) 606. must be for the value of the property In Kansas, if the attachment plaint- as assessed by the court or jury be- iff does not demand an assessment of fore whom the action on the bond is the property kept in possession of the tried, and not for the value as fixed principal in the forthcoming statutory by the appraisers when the bond was bond, judgment can not be obtained given. Fletcher t". Menken, 37 Ark. 206. upon such bond. Lowenstein v. r>Ic- In Rhode Island it was held that § 301 JUDGMENT IX ACTION ON FORTHCOMING BOND. 581 amount of the judgment, then the amount of such judgment will be the measure of damages in such case.' But in no case can the obligee recover a sum greater than the amount of the judgment in the attachment suit.^ And on the other hand he can recover no judgment in a greater amount than the penalty named in the bond/ unless the law positively fixes the liability without respect to the language used.* Hence, if the covenant in the bond be for the return of the property alone, and default be made in such bond, the value of the property will be the ex- tent of the judgment that can be entered againsi, the sureties on the boiid.^ Or if the penalty alone be mentioned, or a penalty greater than the value of the property named, then such sum will be the extent of the judgment that can be recovered against such sureties, even though the judgment recovered in the at- tachment suit be for a greater amount.^ Hence where a bond was given in double the amount of the debt conditioned for payment of the value of the property and alternately for the payment of the debt, etc., and the value of the property is less the sureties were only liable for the sums as may be adjudged them in the value of the goods attached, although action or that the attached property that was less than the amount of the shall be forthcoming and subject to judgment, where the bond which they the court." The court said in an had signed to obtain the surrender action thereon that upon failure to of the goods was conditioned that it have the propertj'^ forthcoming a judg- should be void if the goods should be ment for the amount recovered was returned upon demand on execution proper. But where the property was after judgment, "or if the judgment actually forthcoming and subject to should be paid," and the statutory the order of the court, a judgment for requirement was that the sheriff the amount recovered in the attach- should surrender the goods on giving ment which was greater than the the bond in double the value of the value of the property would not be goods, the bond to be void if the proper. Bell v. Western River, etc., goods be returned "unless" the judg- Co., 3 Mete. (Ky.) 558. ment be paid. Pearce v. Maguire, 17 3. Duffy & Mehaffy y. Lytle, 5 Watts R. I. 61, 20 Atl. Rep. 98. (Pa.) 120; McCutcheon v. Weston, 65 1. Collins V. Mitchell, 3 Fla. 4. Cal. 37 ; Preston v. Hood, 64 Cal. 405. 2. Hammond v. Starr, 79 Cal. 556, 4. Ferguson v. Vance, 3 Lea (Tenn.) 21 Pac. Rep. 971 ; Lemle v. Ronton, 90. 33 La. Ann. 1005; Schmidt w. Brown, 5. Baker v. Morrison, 4 La. Ann. 33 La. Ann. 416. 372. A bond was conditioned that the 6. Palmer r. Vance, 13 Cal. 553. obligor should "pay plaintiff such 582 RELEASE OF POSSESSION OF ATTACHED PROPERTY. § 301 than the amount of the judgment, then the sureties are not en- titled to have their judgment restricted to the vakie of the prop- erty, but a judgment for the amount of the debt is proper.^ A Michigan statute provided that in case of faikire to perform the condition of a bond given to obtain the release of attached property, the plaintiff was entitled to recover thereon the full value of the property attached, or so much as would be suffi- cient to satisfy the judgment rendered in the attachment suit. Under this statute it was held, in a suit on the bond, that the plaintiff was entitled to recover the full amount of the judg- ment in the attachment suit without respect to the value of the attached property/' Nominal damages only can be recovered against the obligors in a forthcoming bond for a failure to produce the property attached when such property was not more than sufficient to satisfy prior liens upon it/ In Alabama, under a statute, a sheriff who takes a claim bond for the return of the attached property may, after trial of the question of ownership, recover a judgment on the bond for the full amount, unless the whole of the attached property is re- turned, and any credits which should be made because of a return of part of the property, or because of other property having been given in lieu of the attached property, will go to the satisfaction of such judgment.* But while off-sets may be shown against the judgment to be entered, or an application made in satisfaction of the judgment when entered, by reason of the return of all, or a part of the attached property, yet it seems that if the obligee in the forth- coming bond accept a part of the property, such acceptance by him is no election to measure his recovery upon the bond by the value of the remainder of the property rather than by the remainder of the debt.^ Judgment may, in some states, be entered in the main case 1. Bond V. Greenwald, 4 Heisk. 3. Hayman v. Hallam, 79 Ky. 389. (Tenn.) 453. 4. Munter v. Leinkauff, 78 Ala. 546. 2. Phansteihl v. Vanderhoof, 22 5. Brumby v. Barnard, 60 Ga. 292. Mich. 296. 583 § 302 GENERAL NATURE OF THE BOND, ETC. a-ainst the sureties on a forthcoming bond by force of statute without the necessity of bringing a separate suit against them, and in some cases, even without the necessity of scire factas or notice. And where, by force of the state statute, the bond given to obtain the release of the property, conditioned for its redelivery to the officer, forms a part of the record, and where in the event of the plaintiff's recovery, judgment may be entered against the principal and sureties on the bond without scire facias or notice, a judgment entered against such sureties is not void for want of notice, even though the surety may be a non-resident of the state at the time.' Part II. By Bond to Pay Judgment. § 302. General nature of the bond, and defendant's privilege in regard thereto.— The two classes of bonds which may be given by the attachment defendant, in order to obtain or re- tain possession of the property attached, i. e., delivery or forth- coming bond, and bond to pay the judgment, have been here- inbefore spoken of in regard to their comparative nature. The particular rules governing the former have been pointed out in the foregoing part of this article, and we have now to treat of the latter class. And first it may be said that the right to have an attachment set aside by giving an obligation to satisfy the judgment which may thereafter be obtained by the attachment plaintiff against the defendant in the attachment suit, is a privilege which the law affords to the defendant, and not a duty enjoined upon him, and hence such attachment defendant may consult his own pleasure in giving or not giving such bond ; and the plaintiff can not complain if the defendant fails to ex- ercise such privilege.* Nor can he take any steps to prohibit it, for we know of no statute or rule of law forbidding the tak- ing of security for a debt on which a suit is pending, whether commenced by foreign attachment or otherwise. Such a bond is 1 See ante § 295. ^- Watson v. Kennedy, 8 La. Ann. 2. Kuhn rj. McMillan, 3 Dill.Md. 372. 280 ; LeeesnetJ. Cottin, 10 Martin (La.) 3. See ante, § 286. 174. 584 RELEASE OF POSSESSION OF ATTACHED PROPERTY. § 302 good at common law.' The defendant's right to retain the pos- session of the attached property, and his further right to have the attachment lien absolutely dissolved upon the giving of a bond to pay whatever judgment may be rendered, is an incident to every species of attachment in states where the statute provides for the giving of a bond to pay judgment, but in order to make it effective there must be a strict com- pliance with a special statute which prescribes the conditions of such bond.^ When the conditions of such bond are that the obligors thereon will satisfy any judgment that may be recovered against the defendant in the attachment suit — and this is the usual condition — the recovery of such judgment fixes the amount to be paid by the obligors, so that the judgment creditor's cause of action is for the recovery of liquidated damages, and within any statutory provision that may be made regarding the same.^ The bond to pay the debt or judgment for the recovery which the attachment has been begun, may be given by the defendant, and the property released at any time before final judgment is rendered in the attacliinent suit.* No one but the defendant in the attacliment suit can give such bond , unless the statute specially authorizes it to be given by a third party.* There is generally a statute by which persons who claim to own'the attached property may intervene and claim such property and get possession thereof by giving the required bond, but the consideration of the law in regard to interveners is not 1. Wright V. Keyes, 103 Pa. St. 567. And, in case of an attachment issued See further as to when such bond against an absconding debtor under may be given in Pennsylvania. Fitch the statute in Mississippi for a debt V. Ross, 4 Serg. & R. (Pa.) 557 ; Bushel not due, the defendant can not procure V. Com. Ins. Co., 15 Serg. & R. (Pa.) the discharge of the property unless 173. he gives bond, with sufficient surety, 2. Bell V. Western River, etc., Co., to pay the debt when it shall become 3 Mete. (Ky.) 558. due. He can not give a special bail 3. McAllisters. Eichengreen, 34 Md. bond in such a case, for such practice 54. was abolished by the act of 1840. 4. Garrett v. Tinnen, 8 Miss. (7 Garrett v. Tinnen, 8 Miss. (7 How.) How.) 465 ; Woodward v. Witascheck, 465. 38 Kan. 760, 17 Pac. Rep. 658. 5. Kling v. Childs, 30 Minn. 366. § 303 SUFFICIENCY OF THE BOND. 585 relevant here and will be considered in a subsequent article. But it may be relevant to state that in Louisiana, at least, a person, by intervening and bonding the property attached and thereby releasing the lien of the attachment and removing it from tiie jurisdiction of the court, becomes consequently bound as surety for whatever judgment may be rendered against the defendant.* And in Louisiana no party can bond attached property who has not been in actual constructive possession, as owner of it, at the time it was attached. But although an intervener may move to bond the property and his motion be dismissed, the intervention will nevertheless stand.' How- ever, the subject of interveners will be taken more fully into consideration in a subsequent article. When an attachment is made upon the goods and effects of both and each of two joint debtors, there can be no release of the joint and separate effects unless a sufficient bond or bonds be given for both. Bail will not be received for one only, to discharge his separate goods.' And the Massachusetts statute providing that personal property which has been attached in a suit against one part owner shall, at the request of the other part owner, be appraised and delivered to him upon his bond to the attaching officer, does not apply to the attachment of partnership property in an action against one partner.* § 303. Sufiiciency of the bond to pay judgment.— In the first place, the bond given for the payment of the judgment which may be obtained in the attachment suit, must be given in a case in which there is a valid attachment then pending, or such bond will be without consideration and void.'' But in a bond 1. Ledda v. Maumus, 17 La. Ann. 4. Breck v. Blair, 129 Mass. 127. 314. 5. Pacific Bank v. Mixter, 124 U. So As to the giving of the bond to re- 721 ; Woodward v. Witascheck, 38 lease the property in the hands of a Kan. 760, 17 Pac. Rep. 658. garnishee, see post, Vol. II, "Garnish- Where a claimant has interpleaded, ment." and where default judgment has been 2. Letchford v. Jacobs, 17 La. Ann. taken against the defendant debtor, 79. and the same has never been paid; 3. Magee v. Callan,4 Cranch C. Ct. and where the interpleader has been 251. adjudged to own the property, and the 586 RELEASE OF POSSESSION OF ATTACHED PROPERTY. § 303 of this class, like in a redelivery bond,' no consideration need be mentioned in the bond, or proved in an action on the bond.^ The release of the attachment is itself the consideration/ The general condition, required by the statute in all bonds of this class, is, that the attachment defendant shall pay what- ever judgment may be rendered against him in the attachment suit then pending.* And some require that the defendant shall appear in person or by attorney and thus render himself liable to a judgment on his default to answer.® But a bond conditioned only that the defendant will appear and answer to the suit is not sufficient, and the officer is not bound to take such bond.'' But where the attachment has been dissolved by a bond having been executed by the debtor and sureties, and ac- cepted by the creditor, it will not be then invalidated because of a failure to contain a condition required by a special statute obliging the sureties to pay a special judgment, provided for by statute, in order to meet a case of bankruptcy on the part of the defendant.' The bond is required in most cases to be given before the rendition of judgment in the attachment suit," but under one statute the defendant had a year and a day within which to disprove the debt, and the security for the restoration of the property need not be given before the issuing of the execution, for it was sufficient if at any time before the sale.^ In some attachment discharged, and a stay Moody v. Morgan, 25 Ga. 381 ; Bushel thereon has been granted to enable v. Com. Ins. Co., 15 Serg. & E. (Pa.) the plaintiffs to appeal, a bond given 173. by the interpleader during the suspen- , 5. Rathbone v. London, 6 La. Ann. sion of the judgment is without con- 439; Love v. Voorhies, 13 La. Ann. sideration, and no liability arises 549. against the sureties thereon. Wood- 6. Peoples. Cameron, 7 111.(2 Gilm.) ward V. Witascheck, supra. 468. gl. See ante, § 287. 7. Mosher v. Murphy, 121 Mass. 276. 2. Higgins v. Healy, 47 N. Y. Supr. See further as to requisites of bond in Ct. 207. Massachusetts, Commonwealth t'. Cos- 3. As to such a bond given to a third tello, 120 ]\Iass. 358, 368. party, being upon a good considera- 8. Woodward -y.Witascheck, 38 Kan. tion, see Central :Mills Co. v. Stewart, 760; Garrett v. Tinnen, 8 Minn. 465. 133 Mass. 461. 9. Fitch v. Ross, 4 Serg. & R. (Pa.) 4. Eimer v. Richards, 25 111. 260; 557. Slosson V. Ferguson, 31 ^linn. 448; § 303 SUFFICIENCY OF THE BOND. 587 States the bond may be given for the release of property, not only after the seizure but before the levy is made to prevent a seizure of the property from being made. But the latter must be done after the attachment writ is in the hands of the of- ficer.' It is almost universally required that a bond of this class should run to the plaintiff, and not to the officer, like a bond of the preceding class, for the condition of this bond is to pay the judgment which may be obtained, and the effect is to dis- solve the attachment, and therefore the sheriff has little or no interest in the performance of its conditions.' However, such a bond running to the sheriff conditioned to hold him harmless *'and to pay whatever judgment may be rendered against the defendant," although not strictly such an undertaking as is contemplated by the statute, yet when conforming substantially to the statutory requirements will be presumed to have been executed with reference to the statute and will be interpreted by the light thereof and held sufficient." The bond must, for obvious reasons, be so worded as to identify the action in which it was given. In an attachment brought against two persons jointly, process was served only upon one and no property but his was attached. A third per- son gave a bond to dissolve the attachment describing the ac- tion as against the one served alone, and containing a condition to pay any judgment that might be recovered in that action, judgment being rendered against the defendant alone who was served. The court held in an action on such bond that it sufficiently identified the suit in which it was given. * 1. Hartwell v. Smith, 15 Ohio St. and be payable "if the plaintiff re- 200 ; Mcintosh V. Hurst, 6 Mont. 287. cover judgment in the action," was 2.' An attachment suit was begun satisfied by a bond to a specifically against the owner of a vessel. A bond named plaintiff conditioned to pay if given was made payable to the "said plaintiff recover judgment in "owner." This was held to be a suf- said action." Slosson v. Ferguson, 31 ficient description. Bryan v. The En- Minn. 448. terprise, 8 Jones (N. C.) L. 260. 3. Heynemann v. Eder, 17 Cal. 433. A statute in Minnesota requiring 4. Central Mills Co. v. Stewart, 133 that the bond given to dissolve the at- Mass. 461. tachment should run "to the plaintiff" 588 RELEASE OF POSSESSION OF ATTACHED PROPERTY. § 303 An undertaking given to procure the discharge of property- attached in two different actions is invalid.' This recognizance,, conditioned tliat the attachment defend- ant and his sureties shall pay whatever judgments are rendered in the attachment suits, may be entered into in open court. ^ And where the statute permits a release bond to be entered into before the clerk of the court when the sheriff has returned the writ, and a bond is taken by the clerk, it will be presumed that the sheriff had then returned the w^rit, although the return day had not then arrived.^ Under many statutes the sureties to an undertaking given to procure the release of attached property must justify as to their financial worth, and when this is required it is a matter of sub- stantial right with the plaintiff wdiich he does not waive by a verbal consent to the entry of an order for the discharge of the property, and under the New York code it is the duty of the sheriff to retain possession of the property until there has been an opportunity for the justification of the sureties, even though there has been an ex-party approval of the undertaking by the court. The entry of an order for a surrender of the property without a justification of the sureties or a waiver of the plaint- iff's right to object for lack thereof is erroneous and will be corrected on motion.* When the statute requires the sureties on a release bond to justify by affidavit, such an affidavit made before the attorney for the defendant will not procure the discharge of the attach- ment,^ especially in any state forbidding affidavits to be made before an attorney to the action to be filed in the case.® The sureties on a bond given for the release of attachment must reside within the jurisdiction of the court, in order that the creditor may have his remedy against them in case the debtor should make default in the payment of the judgment 1. Walton V. Daly, 17 Hun (N. Y.) 5. Bliss v. Molter, 58 How. (N. Y.) 601. Pr. 112. 2. Eiraer v. Richards, 25 111. 260(289). 6. Kansas and Michigan have 3. Morrison v. Alpliin, 23 Ark. 136. statutes of this character. 4. Moses V. Waterbury Button Co., 15 Abb. (N. Y.) Pr. n. s. 205. § 303 SUFFICIENCY OF THE BOND. 589 obtained. In Massachusetts, the}^ must reside within the state in order that the creditor may have his remedy by sci. fa., or debt, given him by the statute, either of which would be im- perfect but for such residence.* The release of the property from attachment, upon the giving of security, can only be pro- cured by the giving of security for the whole nor will proceeding to judgment, and execution sale of the at- tached goods pending appeal, with supersedeas, from an order dissolving the attachment.' , . i • The lien will, however, be lost if personal property which is easily removable is not retained in the possession of the offi- cer ' or if the plaintiff does not prosecute his suit to judg- ment and execution with all due diligence.* Attachment like any other remedy may be defeated by any act which will bar or take away the remedy or right to judgment under it. The lien will be restored by the reversal of the order vacat- ing the attachment. Vacating the attachment destroys the lien Restoring the attachment restores the lien.' Likewise if the plaintiff suffers a voluntary non-suit which is afterward set aside on his motion at the same term of court, the lien will then be as it was before the non-suit was granted.' But when the lien is once vacated it can not be ^restored so as to affect the rights of intervening third persons," § 323 The lien is merged into a judgment for the plaintiff. —The inchoate lien created by the levy of the attachment, for the satisfaction of the particular debt, becomes perfected when the debt is merged into a judgment for the plaintiff. When a judgment is obtained which is a lien upon the attached prop- erty the attachment lien becomes merged into the judgment lien and the latter relates back to the levy of the attachment 1 Scarborough v. Malone, 67 Ala. be served with summons, the lien will 570'; Gary .. Gregg, 3 Stewart (Ala.) be lost unless publication be made as ^33 ' to the other, as required by the statute. 2." Martin v. Maxey, 14 Mont. 85. Donnell v. Williams 21 Hun (N. Y.) 35 Pac. Rep. 667; Clow v. Gilbert, 54 216, 59 How. (N. Y.) Pr. 68 ni App 134 ' 5. Exp. Foster, 2 Story, 131. 3 Thompson 'v. Baker, 74 Me. 48; 6. Pach v. Gilbert, 9 N. Y. S. 548, Sanderson ^^ Edwards, 16 Pick. 18 Civil Proc. Rep. 262, affirming s. c. (Mass ^ 144; Harriman v. Gray, 108 7 N. Y. S. 336. Mass 228. 7. Dollins v. Pollock, 89 Ala. 351, 7 4 Van Loan v. Kline, 10 Johns. So. Rep. 904. (N Y M'>9 • Owen v. Dixon, 17 Conn. 8. Pach v. Orr, 1 N. Y. S. 760 ; Pach ;92. ' V. Gilbert, 9 N. Y. S. 548, 18 Civil Proc. If the action be against a firm com- R. 262. posed of two members and one only 620 THE LIEN CREATED BY ATTACHMENT. § 323 and is superior to all liens created, or transfers made, subse- quent to the levy/ And when a sale is made, upon an execu- tion issued upon the plaintiff's judgment in the attachment suit, such title as the defendant had at the time of the levy, passes to the purchaser unaffected by any conveyance or encumbrance made subsequent to the levy.^ After the judgment is obtained, it is the judgment lien and not the attachment lien which must be enforced ; for the latter has become merged into the former and has no further existence, except to preserve the priority by it acquired, which must be enforced under the judgment by virtue of an execution issued thereon.^ But it is the process of attachment which created the lien and not the judgment rendered on it.* And the lien must be existing when the judgment is rendered, or such judgment w^ill not re- late back to any time prior to its rendition.^ However, it may be well to note that when the judgment rendered is appealed from, and the lien of such judgment is by virtue of a statute released by the execution of a sufficient undertaking, the lien of attachment is not thereby released 1. Scarborough v. Malone, 67 Ala. in aid of which it has been issued, 570 ; People tJ. Cameron,? 111. (2 Gilm.) unless there is a special judgment or 468 ; Richardson v. Adler, 46 Ark. 43 ; order of sale of the property attached Frellson v. Green, 19 Ark. 376. and a special execution. Lowiy v. 2. Lackey v. Seibert, 23 Mo. 85; McGee, 75 Ind. 508 ; Foster u. Dryfus, Cockey v. Milne's Lessee, 16 Md. 200 ; 16 Ind. 158. Striplin v. Cooper, 80 Ala. 256; Ean- And in Tennessee a judgment will dolph V. Carlton, 8 Ala. 606. not perfect the lien created by the levy 3. Speelman v. Chaffee, 5 Colo. 247 ; unless it contain an order of condem- Lynch v. Crary, 52 N. Y. 181 ; Juilliard nation and describe the property with V. May, 130 111. 87. such certainty that a venditioni exponas And the attachment still continues may issue deriving its direction and in so much that it may be referred to authority exchisively therefrom, for purposes of indentification. Juil- Staunton v. Harris, 9 Heisk.(Tenn.) liard V. May, 130 111. 87. 579; Hillman v. Werner, 9 Heisk. 4. Stephen v. Thayer, 2 Bay (S. C.) (Tenn.) 586. 272; Am. Ex. Bank v. Morris Canal But under the Montana code the and Banking Co., 6 Hill (N. Y.) 362. lien of attachment is not lost by tak- 5. Lynch v. Crary, 52 N. Y. 181. inga simple money judgment. State v. Under the Indiana statute the Hen Eddy, 10 Mont. 311, 25 Pac. Rep. 1032. created by the levy of an attachment And also in Texas, prior to the adop- has no force or effect after the judg- tion of the revised statutes, the mere ment has been rendered in the cause, rendition of a personal judgment pre- §§ 324, 325 LIEN IS CONTINUED WHEN APPEAL IS TAKEN. 621 when the judgment of itself does not become a lien upon the attached property.^ § 324. The lien is continued when an appeal is taken from a Judgment for the defendant. — A judgment for the attach- ment defendant is primarily a dissolution of the attachment and a discharge of the lien. But if an appeal be taken to such judgment, or to an order of dissolution of the attachment, the lien is thereby continued.^ And it can not be affected by any interests acquired during the pendency of the appeal.^ But under a statute providing that if the attachment defendant shall recover judgment when real estate has been attached, the clerk shall certify the judgment to the register of deed, who "shall enter such certificates upon the records of his office in satisfac- tion of the lien of such attachment," the appeal of the plaintiff from a judgment for the defendant on the merits when land has been attached will not continue the attachment lien during the pendency of the appeal, unless immediate notice be given of the appeal, a proper bond tendered and a special order of the court entered, decreeing that the lien continue.* § 325. To protect the lien a demand on the Judgment must be made. — Since the whole purpose of an attachment is to seize served the lien without such judgment lieved from the hen by tlie execution containing either an order to sell or a of a bond on appeal from the judg- reservation of a privilege to sell and ment, because there was no judgment without foreclosure of the lien. Wal- lien thereon into which the attach- lace t). Bogel, 66Tex. 572, 2 S. W. Rep. ment lien could merge. Eiley v. «6. Nance, 97 Cal. 203, 31 Pac. Rep. 1126; 1. By force of the code in California Riley v. Nance, 32 Pac. Rep. 315. a judgment becomes a lien on real 2. Calvert Lithographing Co. v. K. property of the defendant owned by & K. INIedical Ass'n, 61 Mich. 336, him at the time, and not exempt 28 N. W. Rep. Ill ; Riley v. Nance, 97 from execution in the county, from Cal. 203, 31 Pac. Rep. 1126; Riley v. the time the judgment is filed; and Nance, 32 N. W. Rep. 315. the lien continues for two years, "un- 3. Ryan v. Maxey, 14 Mont. 81, 35 less enforcement of the judgment be Pac. Rep. 515; Loveland v. Alvord, C. stayed on appeal by the execution of Q. M. Co., 76 Cal. 562. a sufficient undertaking, as provided Even though no supersedeas bond be by this code, in which case the lien filed as required in the appeal. Hari- ceases." Therefore, land conveyed son v. Trader, 29 Ark. 85. by the attachment debtor after attach- 4. Meloy v. Orton, 42 Fed. Rep. 513. ment and before judgment was not re- 622 THE LIEN CREATED BY ATTACHMENT. § 325 and hold the defendant's property until it can be subjected to an execution, its object can not be accomplished unless a judg- ment be obtained against the defendant and the attached prop- erty subjected to an execution. Most statutes limit the time within which such an execution levy must be made, and the attachment lien will not be preserved as against third persons unless the conditions of the statute be strictly observed/ If, however, the levy under the execution be begun within the time limited by the statute therefor, it may be completed after the expiration thereof.^ 1. Whipple V. Sheldon, 63 Vt. 197, 2. Heywood v. Hildreth, 9 Mass. 21 Atl. Eep. 271 ; Sowles v. Witters, 393. See, also, Bliss v. Stevens, 4 Vt. (Cir. Ct.) 65 Fed. Rep. 159 ; Sanford v. 88. Pond, 37 Conn. 588; Gates v. Bush- nel, 9 Conn. 530 ; Green v. Dougherty, 55 Mo. App. 217. CHAPTER XV. DISSOLUTION OF ATTACHMENT. §326. Dissolution by incidental acts and omissions, (a) Generally. 327. (b) By giving security in dif- ferent ways. 328. (c) By alteration in the writ. 329. Cd) By delivering the at- tached property to the debtor, i. e., abandonment. 330. (e) By substitution of par- ties. 331. (f) By insolvency or bank- ruptcy of the debtor. 332. (g) By death of a defendant. 333. (h) By judgment in favor of the defendant. 334. ( i ) By judgment of nonsuit, or by excessive judgment. 335. (i)By personal judgment alone for plaintiff; or by not including portion in order of sale. 836. (k) By failure to demand property within the time required by statute. 337. ( 1 ) By failure to sell as di- rected by statute. 338. Dissolution because of irregu- larities. (a) Generally. 339. (b) Because of insufficiency of the affidavit. 340. (c) Because of insufficiency of the bond. §341. 342. 343. 344. 345. 346. 347. 348. 349. 350. 351. 352. 353. 354. 355 356 (d) Because of insufficiency of the writ. (e) Because of insufficiency of the service and return. Motion to dissolve attachment for irregularities. (a) Who may entertain it. (b) Who may move the court to dissolve an attachment. (c) When the motion must be made — Waiver. (d) Notice of motion. (e) Essentials of the motion —Opposition thereto. Dissolution by denial of plaint- iff's right to attachment. (a) General principles. (b) How such denial inter- posed. (c) Who may question th« right to attachment. (d) When denial may be in- terposed. (e) Trial of issues raised by denial of grounds of at- tachment. (f) Evidence— Burden of proof. Judgment dissolving attach- ment— Effect thereof. . Review of order dissolving at- tachment— Effect of re- versal. . Amendment pending proceed- ings to dissolve an attach- ment. (623) ^24 DISSOLUTION OF ATTACHMENT. 326 §326. Dissolution by incidental acts and omissions— (a) Oenerally. — The object to be attained by dissolution of attach- ment is the discharge of the lien created by the attachment and the release of the attached property. The formal dissolu- tion of attachment by order of court is a matter of great im- portance, for although the attachment writ may have been groundlessly issued the lien created by the levy will neverthe- less be operative until the attachment is discharged by regular proceedings.^ If the attachment proceedings be utterly void it may be brought to the attention of the court even after judg- ment in the attachment proceedings and in the main action, by a proper "collateral" proceeding. But the lien may be dis- solved during the pendency of the main action and if the pro- ceedings be irregular and voidable only, an objection thereto must be raised in apt time before judgment.^ Irregularities which are apparent on the face of the proceedings themselves will give ground for the dissolution of an attachment upon motion.' And where the original proceedings are unwarranted, because of falsehood in the averment of the grounds therefor or otherwise, it will give ground for the dissolution of an at- tachment upon a denial of the averments in the original papers.* Other than these there are many acts both of omission and commission, because of the performance or non-performance of which during the pendency of a proceeding in attachment, that will work a dissolution thereof, releasing the attached property from the lien thereby created. The failure to proceed at the proper term of court will dissolve an attachment,^ and so will an illegal interchange of judicial officers.^ In fact any act, or failure to act, which deprives the court of power to re- tain the property seized, will of necessity release such property from the attachment lien.' Some of these will be indicated in the following sections. 1. Bittick V. Wilkins, 7 Heisk. 5. Bank of Washington v. Brent, 2 (Tenn.) 307 ; ante, § 322. Cranch C. Ct. 538. 2. Post, § 345. 6. Wells v. Mansur, 52 Vt. 239. 3. Post, § 338. 7. Compare Murdock v. Steiner, 45 4. Post, § 348. Pa. St. 349. §§327,328 BY GIVING SECURITY IN DIFFERENT WAYS. 625 §327. (b) By giving security in difierent ways.— That an attachment will be dissolved by the giving of security for the payment of any judgment which may be obtained has been hereinbefore shown.^ It will be effected by giving security for the payment of the indebtedness in many other ways. If the creditor accept from the debtor a deed of trust to all his credit- ors and sign an agreement to pay all of them pro rata, it will discharge the lien.^ It is also effected by suing out a certiorari and giving bond for the payment of the judgment.' And it seems that the same effect will be produced by a writ of error from the supreme court of the United States to the supreme court of a state.* Rejecting proffered security, or waiving a right to claim security of an absent debtor to perform the judgment, will dis- charge the attachment.^ When perishable property, which has been seized on an at- tachment, is sold in the manner provided by law, the lien upon the property is released and transferred to the proceeds of the sale.® § 328. (c) By alteration in the writ.— Any alteration of a writ of attachment which will change the grounds, or cause of action, by increasing the same or inserting a new cause, which will affect the rights of creditors who have subsequently at- tached, will dissolve the attachment made on the original writ as against creditors who have attached before the rendition of judgment and subsequent to the levy thereon,' unless such al- teration is made by order of court or the agreement of parties.' 1. See ante, § 302, et seq. 5. Tiernans v. Schley, 2 Leigh (Va.) 2. Rahity v. Stringfellow, 72 N. C. 25. , , x • ti 328; Claiborne v. Stewart, 4 Baxter 6. See ante, § 262 ; Welsh ^. Lewis, 71 CTenn.) 206 ; Ryhiner v. Ruegger, 19 Ga. 387. 111. App. 156. 7. Ante, § 240, and Clough v. Mon- 3. Vanderhoof v. Prendergast, 94 roe, 34 N. H. 381. Mich. 18, 53 N. W. Rep. 792; Bushey 8. Laighton v. Lord, 29 N. H. (.y V. Raths, 45 Mich. 181, 7 N. W. Rep. Fost.) 237. 802; Treat v. Dunham, 74 Mich. 114, But if the prior attaching creditor 41 N W Rep. 876. increases the original amount claimed, 4 Danforth\. Carter, 4 Iowa 230; by an amendment in good faith after Otis V. Warren, 16 Mass. 53. another creditor has attached, the hen Att. 40 626 DISSOLUTION OF ATTACHMENT. §§ 329, 330 § 329. ( d ) By delivering the attached property to the debtor, i. e., by abandonment. — As hereinbefore shown/ if the [officer abandons or loses the possession of goods attached, or if he, or any person to whom he may have delivered them for safe keep- ing, permits them to return to the possession of the debtor, the attachment is dissolved as to third persons.^ For to sus- tain the lien the property must be continuously in the actual or constructive possession of the officer; and such a dissolution by surrendering possession to the debtor will not be prevented b}'' a stipulation of the debtor that the officer or his agent may have "a daily supervision" of the chattel.' §330. (e) By substitution of parties. — Since the only property which can be held by process of attachment is the property of the defendant in the action,* and the return must state that the property seized is the property of the defendant,* it follows that where there is a substitution of defendants, the property held by the attaching officer will then not be the prop- erty of the defendant, and the attachment lien thereon will be discharged.^ But where there is a change in the name of the defendant, which is not such as to endanger the rights of other persons because of uncertainty as to the persons sought to be identified thereby, such a change of name will not work a dissolution of the attachment.' will not be lost, if, upon obtaining 5. Ante, § 234. judgment for that amount, he directs 6. But if there is a substitution of the sheriff to levy only for the amount defendants by agreement, the case originally claimed. Cutler u. Lang, 30 may stand upon the footing of an or- Fed. Rep. 173. dinary suit against the substituted de- 1. See ante, §256. fendant with service waived. Mill- 2. Boynton V.Warren, 99 Mass. 172; edgeville Mfg. Co. v. Eives, 44 Ga. Wheeler v. Nichols, 32 Me. 233 ; But- 479. ler t\ White, 25 Minn. 432; Dunklee 7. Striking out the middle letter of V. Fales, 5 N. H. 527; Carrington v. the defendant will not dissolve an at- Smith, 8 Pick. (Mass.) 419; Bagley u. tachment of personal property as be- White, 4 Pick. (Mass.) 395; Taintorv. tween the original parties when no AVilliams, 7 Conn. 271. third peron's rights have intervened. 3. Baker v. Warren, 6 Gray (Mass.) Wentworth v. Sawyer, 76 Me. 434. 527. Nor will the insei'tion of a middle 4. See ante, § 38, "What Property or letter vacate an attachment of per- Interest may be Reached," and § 200, sonal property so as to give priority "Execution of the Writ." even to one who has taken a mortgage § 331 BY INSOLVENCY OR BANKRUPTCY OF THE DEBTOR. 627 Likewise changing the name of the plaintiff will work a dissolution of the attachment when the same will be cause for abating other processes of law. The rule relating to idem so- nans will of course apply. ^ § 331. (f ) By insolvency or bankruptcy of the debtor. — Upon the theory that insolvency or bankruptcy is a kind of civil death, or that the debtor's property is in custody of law for the pro rata satisfaction of the claims of his creditors, no lien of attachment can be acquired upon the proj)erty of a bankrupt. The statutes of different states are varied in re- gard to the force and effect given to insolvency and bank- ruptcy proceedings. There is aline of statutes which provides that an assignment in bankruptcy dissolves an attachment sued out within a certain time before the proceedings in bank- ruptcy. But in the adjudication of cases thereunder it is held that the commencement of bankruptcy proceedings is not suf- ficient to dissolve the attachment, and that it is the adjudica- tion alone which has that effect.^ Another line of statutes pre- served attachment liens from the effect of proceedings in bank- ruptcy.' in the interval between the filing of Ct.) 264;Gathercole v.Bedel,65N.H. the writ and the making of the amend- 211, 18 Atl. Rep. 319; IsAngv. Loudon, m e n t. Diettrich v. Wolffsohn, 136 63 Ga. 64. Compare Cerf v. Oaks, 59 Mass. 335. Cal. 132. 1. The amendment of the Christian When a debtor has been discharged name of the plaintiff from "Edward" in bankruptcy, such discharge maybe to "Edmund," has been held to dis- pleaded in bar to the attachment suit, solve an attachment to enforce a lien Fisher v. Vose, 3 Rob. (La.) 457. for wages. Flood v. Randall, 72 Me. But as to the judgment obtainable 439. in such a case in Connecticut, see In- 2. Sullivan v. Rabb, 86 Ala. 433, 5 graham v. Phillips, 1 Day (Conn.) So. Rep. 746; Be Shields, 15 Bankr. 117. But it is the assignee of the Reg. 532; Be Badenheim, 15 Bankr. bankrupt and not the contending Reg. 370; Peck v. Jenness, 7 How. creditor that can raise the question of Sup. Ct. 612 ; Weisenfeld v. Mispel- bankruptcy. Golsan v. Powell, 32 horn, 5 W. Va. 46; Holyoke?;. Adams, La. Ann. 521. Compare Athol Na- 2 Thomp. & C. (N. Y.) 1 ; Duffield v. tional Bank v. Hingham Mfg. Co., 121 Horton, 10 Hun (N. Y. Supreme Ct.) Mass. 399; Munson v. Boston, etc., 140. Compare Brewers,' etc., Ins. Co. R. R. Co., 120 Mass. 81. V. Davenport, 10 Hun (N. Y. Supreme 3. Wells v. Brander, 10 Sm. & M. 628 DISSOLUTION OF ATTACHMENT. § 332 Under the rule that proceedings in a Federal court will be, dismissed on any contingency on which they would be dis- solved in a state court, insolvency proceedings in a state court may be shown in bar of attachment proceedings in a Federal court.* § 332. (g) By death of a defendant. — Whether the death of a party will dissolve attachment proceedings, so much depends upon the local statutes prescribing what causes of action shall and what shall not survive, that few decisions can be cited here that will be of general application. In California, Louisiana and Missouri, the death of the de- fendant, after the levy of an attachment upon his property and before judgment therein, dissolves the attachment lien.^ And in Missouri it is dissolved even after special judgment rendered in attachment, if there has been no personal service upon the defendant.^ In Alabama the death of the defendant does not destroy the lien of attachment levied upon personal property, but does de- stroy the lien upon attached real estate, unless the action is re- vived and prosecuted to judgment against the administrator.* In New York it has been held that the allowance of an at- (Miss.) 348; Peck v. Jenness, 7 How. 1. Neufeld v. Neufeld, 37 Fed. Rep. 612; Kittredge v. Emerson, 15 N. H. 560; and vice versa, People's Bank v. 227; In Matter of Rowell, 21 Vt. 620. Mechanics', etc.Bank, 62 How. (N.Y.) It has been said that where a de- Pr. 422. fendant corporation suffered civil 2. Hensley v. Morgan, 47 Cal. 622; death by a decree of forfeiture of its Myers v. Mott, 29 Cal. 359 ; Collins v. charter by a judicial tribunal before Duffy, 7 La. Ann. 39 ; Sweringen v. judgment in the attachment case, the Eberius, 7 Mo. 421. attachment was dissolved; but this 3. Harrison «. Renfro, 13 Mo. 446. was on the theory that attachment 4. Lipscomb v. McClellan, 72 Ala. was for the purpose of compelling an 151; Phillips i'. Ash, 63 Ala. 414; appearance. Farmers', etc., Bank v. McClellan v. Lipscomb, 56 Ala. 255. Little,8Watts&S.(Pa.)207;Bowkerv. If death is attended by insolvency Hili,60 Me. 172. But in Illinois the lien judicially ascertained, the lien on of attachment was not dissolved by in- personal property is lost. Woolfolk solvency proceedings dissolving the v. Ingram, 53 Ala. 11 ; Hale v. Cum- corporation and appointing a receiver mings, 3 Ala. 398 ; Lamar v. Gunter, to take charge of its assets. Life 39 Ala. 324 ; McEachin v. Reid, 40 Ass'n V. Fassett, 102 111. 315. Ala. 410; Maxwell v. Pike, 2 Me. 8. § 332 BY DEAtH OF A DEFENDANT. 629 tachment is a provisional remedy by which the plaintiff ac- quires such a right in the attached property as will not be de- feated by the death of the defendant if the action survives, but the same may be continued against his representatives.^ The same rule prevails in Iowa,' New Jersey,' West Virginia,* and Florida.^ The contrary rule applies in Rhode Island, al- though the cause of action itself survives.® In Tennessee, likewise, attachment not being a proceeding in rem, no judgment can be obtained until the personal repre- sentative is made a party to the suit.' But when this is done the lien still subsists as though the defendant had not died.* In Mississippi, by force of the statute, the death of the de- fendant after service of the writ will not abate or discontinue it, but it shall be carried on to final determination and sale, as if the defendant were alive and death had not occurred. It was there held that while the court had no power to render a personal judgment against the defendant for his death, yet a judgment might be entered against the garnishee to the extent of the property in his hands and no further.^ And where the garnishee had been served before the death of the defendant, and the administrator appeared after death of the defendant, and without personal service having been had upon such de- fendant, the garnishee was held likewise liable.^" In New Hampshire and Pennsylvania the attachment is not dissolved by the death of the defendant where such death oc- curs after judgment is rendered, although he die before sale is made of the property." 1. Thatcher w. Bancroft, 15 Abb. (N. ent. Boyd v. Eoberts, 10 Heisk. Y.) Pr. 243. (Tenn.) 474. As to insolvency at 2. Lord V. Allen, 34 la. 281. death in Maine, see Ridlon v. Cres- 3. Smith V. Warden, 35 N.J. L. 346. sey, 65 Me. 128; and as to insolvency 4. White V. Heavner, 7 W. Va. 324. at death in Massachusetts, see Day v. 5. Loubat V. Kipp, 9 Fla. 60. Lamb, 6 Gray (Mass.) 523. 6. Dwyer v. Benedict, 12 R. I. 459. 9. Holman v. Fisher, 49 Miss. 472. 7. Green v. Shaver, 3 Humph. 10. Dyson v. Baker, 54 Miss. 24. (Tenn.) 139. The same principle maintains in South 8. Perkins v. Norvell, 6 Humph. Carolina. Kennedy v. Raguet, 1 Bay (Tenn.) 151. (S. C.) 484. Although the estate may be insolv- 11. Waitt v. Thompson, 43 N. H . 161 ; 630 DISSOLUTION OF ATTACHMENT. §§ 333, 334 § 333. ( h ) By Judgment in favor of the defendant. — A final judgment for the defendant in the attachment suit dissolves the attachment ipso facto,"- although a judgment may have been rendered for the plaintiff on a plea in abatement,^ unless a supersedeas by a writ of error is sued out or an appeal is taken,' likewise a verdict in favor of the defendant on a plea in abate- ment will release the attached property from the lien, although no trial has been had upon the issue of the indebtedness.* § 334. (i) By judgment of nonsuit; or by excessive judg:- luejlt. — Where a judgment as of a nonsuit is rendered in a proceeding aided by attachment, the attachment is thereby dissolved. * If a creditor knowingly and intentionally take judgment for more than could possibly have been recovered at the com- mencement of his suit, it will be a fraud upon a subsequent Bowman v. Stark, 6 N. H. 459; Fitch V. Eoss, 4 Serg. & R. (Pa.) 557. In Pennsylvania and Maryland the death before final judgment dissolves the attachment where special bail has not been entered. Fitch v. Ross, 4 Serg. & R. (Pa.) 557; also Pancost v. Washington, 5 Cranch C. C. 507. 1. Clap V. Bell, 4 Mass. 99; Suydam V. Huggeford, 23 Pick. (Mass.) 465; Buchman v. Dodds, 6 111. App. 25; Stix V. Dodds, 6 111. App. 27 ; Johnson V. Edson, 2 Aikens (Vt.) 299; Love- land i'. Alvord, etc. Co., 76 Cal. 562, 18 Pac. Rep. 682 ; Blynnv. Smith, 4 N. Y. S. 306; Ranft v. Young, 21 Nev. 401, 32 Pac. Rep. 490. And the fact that there is a new trial pending will not have the effect of keeping it in force. Ranft??. Young, 21 Nev. 401, 32 Pac. Rep. 490. 2. Boekhoff v. Gruner, 47 Mo. App. 22. 3. Sherrod v. Davis, 17 Ala. 312; Lowenstein v. Powell, 68 Miss. 73, 8 So. Rep. 269. Judgment in favor of the defendant on a feigned demurrer will dissolve the attachment if the plaintiff does not appeal therefrom, or, if he appeals and fails to enter the action at the next term of the court to which he has ap- pealed. Suydam v. Huggeford, 23 Pick. (Mass.) 465. 4. Ranscher v. McElhinney, 11 Mo. App. 434. Unless a bill of exceptions is tend- ered at the next term of court. Ran- scher V. McElhinney, 11 Mo. App. 434. 5. Brown v. Harris, 2 Greene (la.) 505; Hubbell v. Kingman, 52 Conn. 17. And in Iowa the lien is not revived by setting aside such judgment of non- suit, but in Connecticut it is so re- vived if the judgment be set aside at the same term. Brown v. Harris, 2 Greene, (la.) 505; Hubbell v. King- man, 52 Conn. 17. §§335,336,337 by personal judgment alone. 631 attaching creditor and work a dissolution of tlie attachment as to him. § 335. (j) By personal 3iul!2:ment alone for plaintiS ; or by not including: portion in order of sale.— The rendition of a personal judgment alone for the plaintiff in a proceeding aided by attachment, at least in Illinois and Indiana, op- erates to quash the attachment and the property is as free as though no attachment proceedings had been begun. To pre- serve the attachment, there must be also an order of sale.'' Therefore, if an order to sell in these states does not include the whole of the attached property, the attachment will be re- leased as to the portion not included in such order.' § 336. (k) By failure to demand property within the time required by statute.— In some states the statute prescribes that within a certain number of days a demand must be made on execution or the attachment will be dissolved ipso facto.* In some such cases, however, the court has discretion to forward the case to a subsequent term for the purpose of continuing the lien of the attachment.® § 337. ( 1 ) By failure to sell as directed by statute.— When judgment is rendered for the plaintiff in -the attachment, and an order is entered that the property be sold, such sale must be made by the officer in the manner prescribed by the con- trolling statute in order to pass title thereto, and if such sale is not made in the right mode and within the time prescribed the attachment lien is dissolved.* 1. Page V. Jewett, 46 N. H. 441 ; 4. Stackpole v. Hilton, 121 Mass. Tucker''^ Green, 27 Kan. 355. Contra 449; Knap ^J. Sprague, 9 Mass. 258; see Felton v. Wadsworth, 7 Cash. Croswell t>. Tufts, 76 Me. 295; Aiken (Mass.) 587. t'. Medex, 15 Me. 157. 2 Wasson v. Cone, 86 111. 46 ;United 5. Hackett v. Pickering, 5 ^ . H. 19. States Mortgage Co. v. Henderson, 111 See, also, Wheeler v. Fish, 12 Me. (3 Ind 24, 12 N. E. Eep. 88; Sannes v. Fairf.) 241. Ross, 105 Ind. 558; Smith v. Scott, 86 6. Eld ridge «. Lancy, 17 Pick. Ind. 346; Lowry v. McGee, 75 Ind. (Mass.) 352; Aiken v. Medex, 15 Me. 508. 157. 3. Thomas v. Johnson, (Ind. Sup.) 36 N. E. Rep. 893. 632 DISSOLUTION OF ATTACHMENT. §§ 338, 33D § 338 . Dissolution because of irregularities — ( a ) Generally. —There are many defects and irregularities wliicli may occur in the plaintiff's proceedings in attachment that will be suffi- cient cause for dissolving the attachment when the same is brought to the attention of the court, and which may yet not be sufficient to work a dissolution of themselves for they will be considered to be waived unless the attention of the court is drawn thereto and its aid invoked by the defendant. These defects and irregularities may be divided into two classes en- abling us to say that there are two grounds upon which a dis- solution of attachment may be procured. (1) Where some irregularity of a fatal character appears upon the face of the proceedings and (2) where the allegations upon which it is issued are untrue.^ The first of these will receive attention in the next succeeding sections and the second will be considered thereafter.^ Where the defects and irregularities for which a dissolution is sought appear upon the face of the proceedings, they are properly brought to the attention of the court by motion to dissolve the attachment or by motion to quash the writ. This motion is addressed to the sound discretion of the court and may be entertained or denied.' If the defect is in- trinsic and not discernible on the face of the proceedings it can not generally be brought to the attention of the court on such a motion, but must be raised in some other manner; as by a plea, or a rule to show cause why the attachment should not be dissolved.* § 339. (b) Because of insuSiciency of the affidavit. — Where an affidavit is in fact made but does not conform to the require- 1. Bates V. Killian, 17 S. C. 553: 230; Harrison i?. King, 9 Ohio St. 388; Mason v. Lieuallen, (Idaho) 39 Pac. Cooper v. Eeeves, 13 Ind. 53 ; Pomroy Rep. 1117. V. Parmlee, 9 Iowa 140; Olmstead v. 2. See post, § 348. Rivers, 9 Neb. 234 ; Bear v. Cohen, 65 3. Busbin V. Ware, 69 Ala. 279 ; Cot- N. C. 511; Crawford v. Jones, 2 La. ton u. Heuey, 4 Ala. 56; Reynolds v. Ann. 2; Boardmen v. Glenn, 7 La. Bell, 3 Ala. 57; Brewer v. Tucker, 13 Ann. 581; Garrett v. Taylor, 88 Ga. Abb. (N. Y.) Prac. 76; Coward r. Dil- 647, 14 S. E. Rep. 869. linger, 66 Md. 59; Lambdenr. Bowie, 4. See ;)os«, §348. Exceptions to this 2 Md. 334; Bower v. Town, 12 Mich, rule see jjosf, § 347. §340 BECAUSE OF INSUFFICIENCY OF THE BOND. 633 ments of the statute, the attachment issued thereon will be ir- regular/ and will be dismissed on motion.^ The total lack of an affidavit in an attachment proceeding may in many states be taken advantage of on motion to dis- solve.^ But since in such a case the court is wholly without jurisdiction the want of an affidavit may be pleaded in abate- ment,* or in bar.* The mere failure to file with the clerk of the court, in the time and manner provided, the affidavit upon which the at- tachment was granted will not be a ground for vacating an attachment.® § 340. (c) Because of insufficiency of the bond. — A bond is 1. See ante, § 127. 2. Clark v. Roberts, 1 111. (Breese) 222; Blackwood v. Jones, 27 Wis. 498; Elliot V. Jackson, 3 Wis. 649 ; Espey V. Heidenheimer, 58 Tex. 662; Biddle V. Black, 99 Pa. St. 380; Ferguson v. Dunham, 10 Kan. 396; Ferris v. Carl- ton, 8 Phila. 549; Anderson v. John- son, 32 Gratt. (Va.) 558. Where the irregularities appearing on the face of the affidavit are not such as to have prevented the court from having acquired jurisdiction, the plaintiff may in many states be per- mitted to amend it in this regard. See ante, § 152. And if a motion is made to dissolve the attachment be- cause of such irregularities, the mo- tion will not be granted unless the plaintiff fails to take advantage of his opportunity to amend. Campbell v. Whetstone, 4 111. (3 Scam.) 361; Graves v. Cole, 1 Greene (Iowa) 405; Henderson v. Drace, 30 Mo. 358; Drew V. Dequindre, 2 Doug. (Mich.) 93; Quinlan v. Danford, 28 Kan. 507; McClanahan v. Brack, 46 Miss. 246; Lawton v. Kiel, 51 Barb. (N. Y.) 30; Lawton v. Reil, 34 How. (N. Y.) Pr. 465. Many slight defects in the affidavit will be ignored when the same are plainly indicated by other portions of the instrument. Citizens' Bank v. Hancok, 35 La. Ann. 41. And in Kansas the attachment will not be vacated for a defective affidavit, if the evidence introduced at the hearing to vacate supplies the defect. Hodson V. Tootle, 28 Kan. 317. 3. McReynolds v. Neal, 8 Humph. (Tenn.) 12; Bruce v. Cook, 6 Gill A J. (Md.) 345; Coward v. Dillinger, 56 Md. 59; Ford v. Woodward, 2 Sm. & M. 260; Ford v. Hurd, 4 Sm. & M. (Miss.) 683; McClanahan v. Brack, 46 Miss. 246; Wright v. Smith, 19 Tex. 297 ; Erwin v. Commercial Bank, 3 La. Ann. 186. 4. Johnson v. Hannah, 66 Ala. 127; Wright V. Smith, 66 Ala. 545 ; Jonea V. Pope, 6 Ala. 154. 5. Starbuch v. Murray, 5 Wend. (N. Y.) 148 ; Shumway v. Stillman, 4 Cowen (N. Y.) 292. 6. Bank of Augusta v. Conrey, 28 Miss. 667; Wheeler v. Slavens, 21 Miss. (13 Smed. & M.) 623; Brash r. Wielarsky, 36 How. (N. Y.) Pr. 253; Wright V. Ragland, 18 Tex. 289 ; Ketchin v. Landecker, 32 S. C. 155, 10 S. E. Rep. 936. 634 DISSOLUTION OF ATTACHMENT. §341 a prerequisite to the legal issuing of an attachment/ and where no such bond is filed the court is without jurisdiction and the attachment will be dissolved on motion,' but if the bond filed be insufficient, the attachment will not in most states be dis- solved until the plaintiff has been given time to amend the defect by filing a new and sufficient bond.^ Upon a motion to dissolve an attachment because of insufficiency of the bond, the court w411 not look beyond the face of the bond itself to as- certain its validity.* But if any clerical error therein can be ascertained by looking to the whole instrument to learn its in- tent, the irregularity will not be sufficient ground for dissolu- tion/ § 341 . ( d ) Because of insufficiency of the writ— Defects in the form of the writ, or irregularities in the manner in which it is issued, when the same are apparent upon the face of pro- ceedings, may be taken advantage of by a motion to dissolve the attachment.® 1. See ante, §§ 153 and 154, 2. Bank of Alabama v. Fitzpatrick, 4 Humph. (Tenn.) 311; Osborn v. Schiffer, 37 Tex. 434. 3. Planters', etc., Bank u. Andrews, 8 Port. (Ala.) 404; Love v. Derrick, 9 Port. (Ala.) 415; Lowry v. Stowe, 7 Port. (Ala.) 483; Didier «. Galloway, 3 Ark. 501; Hall v. Kintz, (Pa. Com. PI.) 12 Pa. Co. Ct. E. 90; Hall v. Kintz, (Pa. Com. PI.) 2 Pa. Dist. R. 16; Tevis v. Hughes, 10 Mo. 380; Henderson v. Drace, 30 Mo. 358; Beardslee v. Morgan, 29 Mo. 471; Kissam v. Marshall, 10 Abb. (N. Y.) Pr. 424; Oliver v. Wilson, 29 Ga. 642; Goddard v. Cunningham, 6 Iowa 400; Bretney v. Jones, 1 Greene (Iowa) 366. See atite, §§ 179 and 180. 4. Spear v. King, 14 Miss. (6 Smed. & M.) 276. 5. Hewes v. Cooper, 115 Mass. 42. If the bond bear equal date with the attachment it will be presumed that it was taken before the issuance of the attachment. M'Kenzie v. Buchan, 1 Nott & M. (S. C.) 205; Summers v. Glancey, 3 Blackf. (Ind.) 361 ; Root V. Monroe, 5 Blackf. (Ind.) 594. See ante, §§ 154 and 158. The want of a seal is an incurable defect in Iowa — Shaffer v. Sundwall, 33 Iowa 579— but not in Texas. Gas- quet V. Collins, 57 Tex. 340. Further, see ante, § 160. 6. Reed v. Buck, (Pa. Com. PI.) 32 W. N. C. 204; Genin v. Tompkins, 12 Barb. (N. Y.) 265; Blake v. Camp, 45 Ga. 298; Woodly v. Shirley, Minor (Ala.) 14; Musgrave v. Brady, 1 Morr. (Iowa) 456 ; Barber v. Swan, 4 Greene (Iowa) 352; Hagan v. Burch, 8 Iowa 309; Dean v. Garnet, 1 Duv. (Ky.) 408; Bourne v. Hocker, 11 B. Mon. (Ky.) 23; Erwin v. Commercial Bank, 3 La. Ann. 186; Mansur-y. Cof- fin, 54 Me. 314; Byrd v. Hopkins, 16 Miss. (8 Smed. & M.) 441; Reynolds V. Damrell, 19 N. H. 394; Askew v. Stevenson, Phill. (N. C.) L. 288; § 342 BECAUSE OF INSUFFICIENCY OF THE SERVICE, ETC. 635 All objections to a defective writ will be waived by failing to object tliereto and asking that the levy be set aside on other grounds/ §342. (e) Because of insufficiency of the service and re- turn. — The general rule is, as hereinbefore stated/ that where the return of a mesne process states that it was duly executed, all presumptions of law are in favor of the regularity of the acts of the officer and a prima facie case of due and proper execution is shown, but these presumptions may be disputed.' When the return shows that the attachment was not made at a time authorized by law,* or in a place authorized by law,^ or does not properly describe the articles attached,^ or the levy has not been made by an officer authorized so to do, the levy will be quashed.' But the writ itself will not abate though served only as a summons and no attachment of property is made.* And although it be served by a constable not author- ized to execute writs of attachment from a circuit court, yet it may proceed as an action in personam where such a bond is filed as will constitute a personal appearance.^ Since an attachment, where considered as an auxiliary pro- cess, will fail if there is no service of summons," it follows that Park V. Harmon, 14 Vt. 211 ; Paine v. 3. Porter v. Pico, 55 Cal. 165. Tilden, 20 Vt. 554. 4. McFarren v. "Whervy, 5 Cranch And to be regular in form it must C. Ct. 677. not vary substantially from the affi- 5. Seidenbach v. Hallowell, 5 Dill. davit. Ante, § 191, et seq. C. C. 382. But the existence of a defective 6. Green v. Pyne, 1 Ala. 235. count in the writ will not be sufficient 7. Lawrence v. Featlierston, 18 Miss, ground for dismissal, if the writ be (10 Sm. & M.) 345. properly issued, in due form of law, 8. Seers v. Blakefiy, 1 Root (Conn.) and not an absolute nullity. Elav. 54; Embra^?. SilHman, 1 Root (Conn.) Shepard, 32 N. H. 277. 128. 1. Wolf V. Cook, 40 Fed. Rep. 432; 9. Bates v. Crow, 57 Miss. 676. see further as to "Waiver," pos«,§ 345. The failure to return the writ into And although the person named as court until after the return day will not defendant believe that another person be a ground for dissolving the attach- was intended, yet he should appear ment, although the cause may have and defend, for if a default judgment been in the meantime removed to the is recovered against him it will be op- federal court. Nims v. Spurr, 138 erative. Frazer v. Sibley, 50 Ga. 96. Mass. 209. 2. See ante, § 237. 10. See ante, § 216. 636 DISSOLUTION OF ATTACHMENT. §343 where there is no service of summons personally or by pub- lication in the manner and within the time prescribed by law, it will be dissolved on motion.^ Advertising,^ and posting notices' being a part of the due execution of a writ of attachment, the same must be done at the time and in the manner prescribed by law, or the neglect so to do will be ground for quashing the attachment.* § 343 . Motion to dissolve attachment for irregularities — ( a ) Who may entertain it. — As a fundamental principle it may be stated that a court without jurisdiction in the attachment case will be powerless to render an order dismissing it.^ But the power of a court to control its own process is inherent.® Therefore a motion to vacate the attachment must be made to the court who granted it.' And the motion will be disposed of by the court and not by the jury.* By force of the statute 1. Cossitt V. Winchell, 39 Hun (N. Y.) 439; Betzemann v. Brooks, 31 Hun (N. Y.) 271 ; Taddiken^^ Cantrell, 4Thomp. & C. (N. Y.) 222; 1 Hun (N. Y.) 710; Blossom v. Estes, 84 N. Y. 614. After it is so inoperative it can not be revived by the appearance of the defendant. Blossom v. Estes, 84 N. Y. 614. 2. Cory v. Lewis, 5 N. J. L. (2 South) 846. 3. Wilson V. Ray, T. U. P. Charlt. (Ga.) 109. 4. Cory v. Lewis, 5 N. J. L. (2 South.) 846; Wilson v. Ray, T. U. P. Charlt. (Ga.) 109. As to the amendment of a return of service of process, see §§ 238 to 242. 5. Gay v. Eaton, 27 La. Ann. 166. 6. Morgan v. Avery, 7 Barb. (N. Y.) 656; Bank of Commerce v. Rutland, etc., R. R. Co., 10 How. (N. Y.) Pr. 1 ; Furman v. Walter, 13 How. (N. Y.) 348. 7. Conklin v. Dutcher, 5 How. (N. Y.) Pr. 386; White v. Featherston- haugh, 7 How. (N. Y.) Pr. 357; Bank of Lansingburgh v. McKie, 7 How. (N. Y.) Pr. 360. But when a motion is made to the proper court, and in a proper manner, there is no necessity that the presid- ing judge should be the same one who granted the attachment. Ruppert v. Haug, 87 N. Y. 141, s.c. 62 How. (N. Y.) Pr. 364. 8. Wiggin V. Kanady, 33 Tex. 721 ; Claflin V, Steenbock, 18 Gratt. (Va.) 842. In Michigan the motion to dissolve may be made before a circuit court commissioner. For the law and prac- tice in such cases, see, Edgarton v. Hinchman, 7 Mich. 352; Osborne v. Robbins, 10 Mich. 277; Albertson v. Edsall, 16 Mich. 203; Prices. Reed, 20 Mich. 72 ; Macumber v. Beam, 22 Mich. 395 ; Vinton v. Mead, 17 Mich. 388 ; Heyn v. Farrar, 36 Mich. 258. X 344 WHO MAY MOVE THE COURT. 637 in some states a judge at chambers has legal descretion to dis- charge an attachment on motion.^ If an attachment has been granted by a court having no legal power so to do, such attachment may be dismissed by a court having jurisdiction to review the actions of the court which granted it.^ The hearing of a motion to dissolve an attachment may be continued, even after the judge has announced his decision, upon the application of the party against whom such decision was made.' § 344 (b) Who may move the court to dissolve an attach- nient— Who may be entitled to make a motion to dissolve an attachment for irregularities, is so little a matter of principle and so much a matter of special statutory provision, that no attention need be given to the subject in a general work like this further than to suggest cases bearing upon the sub- ject in the different states. It is sometimes held that no one other than a party to the suit may move the court to set aside the attachment for irregularities, even though he be a judg- ment creditor.* Therefore, it has been often said that no one but a defendant can take advantage of mistakes made by the plaintiff in suing out his attachment.' But the defendants "^ 1. Cohen .. Burr, 6 Wis. 200 ; Care- 4. McBride . Floyd 2 Bai ey (S ton V Dargan 12 S. C. 122; Shedd v. C.) 209; Kincaid v. Neall, 3 McCord McConneiriS Kan. 594; Wells . (S. CO 201; Copeland . P.edmon , Danford, 28 Kan. 487; Merchants' etc., Ins. Co., 17 S. C. ll^' Metts «. Nat Bank v. Danford, 28 Kan. 512; Piedmont, etc., Ins. Co., 17 fe_^- 1-". Wails .. Campbell, 125 Pa. St. 346, 23 Williams .. Walker U Iowa . . ; Zook W N C. 506, 17 Atl. Rep. 422 ; Walls .. Blough, 42 Mich. 487 ; Bank of Santa V Boteller, 23 W. N. C. 508, 17 Atl. Fee v. Haskell Co. Bank, 54 Kan. 375, Rep 4-^'^ ' 38 Pac. Rep. 485. And where he has such power he 5. Mendes v. Freiters, 16 Nev. 388; «,av do so, bythe appearance of both Cockrell .. McGraw, 33 Ala 5 6; parties without objection, although a Schoppenhast^. Bollman, 21 Ind^-8U, regular session of the court was being AVilhamst^. Walker, 11 Iowa 77; Moore held in the same county by a judge .. Stege, 93 Ky 27 18 f- W. liep. .pro tern, Swearingen .. Howser, 37 1019; Harper .. Scuddy, lMcMull(S. Kan 126, 14 Pac. Rep. 436; Yoakam C. L.) 264; Windtt.. Banmza, 2 Wash. V. Howser, 37 Kan. 130, 14 Pac. Rep. 147, 26 Pac. Rep. 189. ^3g Under one statute it was held that . o' Buck V. Panabaker, 32 Kan. 466; the defendant might move to vacate ^ Deimas«. Morrison, 61 Miss. 314. the attachment, although he dis- 3. Hanna v. Barrett, 39 Kan. 446, 18 Pac. Rep. 497. 638 DISSOLUTION OF ATTACHMENT. §344 motion to discharge need not be as to all the attached prop- erty. He may have a part only released.* In states permitting a special appearance of the defendant in an action, for certain purposes only, a defendant may move to quash a writ of attachment without submitting himself to the jurisdiction of the court, if he restrict his appearance to the sole purpose of making such motion.^ But where one other than the defendant is not permitted to have the attachment dissolved on motion because of irregu- larities, yet if it be illegal and void he will have a right to have the same dissolved by intervention or otherwise.^ The general rule is that any person not a party to the suit must, in order to have relief, proceed by intervention, yet many statutes specially provide that not only the defendant and garnishee, but third persons who have acquired an inter- est in the property attached, by lien or otherwise, will be heard upon a motion to dissolve the attachment, when the result would be the same as if otherwise obtained.* But in order to claimed any interest in the attached property. Salmon v. Mills, 49 Fed. Rep. 333, 4 V. S. App. 101, 1 Cir. Ct. App. 278, or had since assigned it for benefit of creditors. Tolerton & Stet- son Co. V. Casperson, (S. D.) 63 N. W. Rep. 908. While under another it was held that an attachment could not be dis- solved on application of the defend- ant, whose only interest in the at- tached property was what might re- main after the mortgage was satisfied. McCord-Brady Co. v. Krause, 36 Neb. 76-1, 55 N. W. Rep. 215. 1. Quinlan v. Danford, 28 Kan. 507 ; Price V. Reed, 20 Mich. 72; Patterson V. Goodrich, 31 Mich. 225. Therefore the order of dissolution should show whether it applies to the whole property or to what part. Ells- worth V. Scott, 3 Abb.(N.Y.) N. Cas. 9. 2. Johnson v. Buell, 26 111. 66; Ro- dolph V. Mayer, 1 Wash.T. 154; Man- ice V. Gould, 1 Abb. (N. Y.) Pr. N. S 255; Tiffany v. Lord, 65 N. Y. 310 Bonner v. Brown, 10 La. Ann. 334 Kendall v. Brown, 7 La. Ann. 668 Holzman v. Martinez, 2 N. Mex. 271 Whiting V. Budd, 5 Mo. 443. 3. Walkers. Roberts, 4 Rich. (S. C.) 561. 4. Chase v. Foster, 9 Iowa 429; Clarke v. Meixsell, 29 Md. 221 ; Baird V. Williams, 19 Pick. (Mass.) 381; Randall v. Williams, 19 Pick. (Mass.) 381 ; Peirce v. Richardson, 9 Mete. (Mass.) 69; Henderson v. Thornton, 37 Miss. 448 ; Pendleton v. Smith, 1 W. Va. 16; Trow's Printing and B. B. Co. V. Hart, 85 N. Y. 500; Smith v. Davis, 29 Hun (N. Y.) 306 ; Capehart V. Dowery, 10 W. Va. 130; Long v. Murphy, 27 Kan. 375; Dearborn v. Vaughan, 46 Kan. 506, 26 Pac. Rep. 1038 ; Dolan v. Topping, 51 Kan. 321, 32 Pac. Rep. 1120; Wm.W. Kendall Boot and Shoe Co. v. August, 51 Kan. 53, 32 Pac. Rep. 635; McDonald v. Clark, §344 WHO MAY MOVE THE COURT. 639 have his motion heard, his interest in the attached property must generally be shown.' And with him rests the burden of proof. ^ Under such a law will be included assignees for the benefit. of creditors, when they have a right to the possession of thej^ property, although they be not parties to the suit," or they may move to release a part only of the attached property and ob- tain an order for the dissolution as to such part.* Where a motion by one statutory assignee has been overruled and a motion to dissolve is made by his successor without leave of court, such a motion will be stricken from the files,^ upon the doctrine that a motion once denied can not be renewed as a matter of right except upon facts arising subsequent to the ruling on the former motion.* It has been said, also, that the rule of law permitting an assignee to move to vacate an attachment does not allow such a motion by him when a similar motion has been theretofore made by the defendant and denied to him.' 53 Minn. 230, 54 N. W. Rep. 1118; Remington Paper Co. v. Louisiana Printing and Publishing Co. (C. C.) 56 Fed. Rep. 287. One such state has said that a per- son having acquired a lien can not move upon the irregularity in attach- ment. Steuben County Bank v. Al- berger, 21 Hun 109, 83 N. Y. 274. See post, § 353, "Evidence." 1. Delmore v. Owen, 44 Hun (N.Y.) 296. 2. Parlin v. Spencer, — Kan. — , 33 Pac. Rep. 363. It is said in Texas that sureties on a replevin bond without claiming any right or authority to control or manage the suit, yet have a sufficient interest in the determination of it to move to quash" the attachment. Burch v. Watts, 37 Tex. 135. In Michigan a partner not implicat- ed in the grounds upon which the at- tachment was issued, may have the attachment dissolved and the property restored to him. Edwards v. Hughes, 20 Mich. 289. And where a husband and wife are jointly in possession of land owned by her and used as a homestead, he has such an interest therein as will entitle him to move for the dissolution of an attachment levied upon the land as his. Rowe v. Kellogg, 54 Mich. 206. 3. Wichita Wholesale Grocery Co. V. Records, 40 Kan. 119, 19 Pac. Rep. 346; Cahn v. Records, 40 Kan. 123, 19 Pac. Rep. 349; Chandler v. Nash, 5 Mich. 409; Bryce v. Foot, 25 S. C. 467. 4. Trow's Printing and Bookbinding Co. V. Hart, 85 N.Y. 500, s. c. 9 Daly (N. Y.) 413. 5. Hillyer v. Biglow, 47 Kan. 473, 28 Pac. Rep. 150. 6. Steuben Co. Bank v, Alberger, 83 N. Y. 274. 7. Strauss v. Vogt, (Supr. N. Y.) 24 N. Y. S. 483. In Missouri the assignee, for the 640 DISSOLUTION OF ATTACHMENT. §344 Likewise a mortgagee of personal property who has obtained possession of it has such an interest therein as will entitle him under such a statute to move to dissolve an attachment brought by a third person against the mortgagor.^ A receiver is likewise included under a special statute in New York, when his interests are acquired subsequent to the issuance of the attachment/ but not when his title is acquired theretofore.' A junior attaching creditor is likewise included as "a person who has acquired a lien upon or interest in the defendant's property," under the same statute in New York, but a motion to dissolve because of the irregularities in the prior attachment will not be entertained when his attachment is likewise in- sufficient.* In West Virginia also a subsequent attaching creditor may appear by petition and move to quash the pro- benefit of creditors, should proceed, by intervention and not by motion, to dissolve. Boltz v. Eagon, 34 Fed. Rep. 445. And in Georgia, one who has inter- posed a claim to the property levied upon may make a motion to vacate the attachment. Hinea v. Kimball, 47 Ga. 587. In Minnesota an insolvent who has made an assignment for the benefit of creditors has a reversionary interest in the property assigned, and may therefore move to vacate an attach- ment when issued on the ground of fraud. First Nat. Bank v. Randall, 38 Minn. 382, 37 N. W. Rep. 799. In New York a defendant may move to vacate a provisional attachment as well after an assignment of his inter- est in the attached property as before the levy. Gasherie v. Apple, 14 Abb. (N. Y.) Pr. 64. 1. Hosear. McClure, 42 Kan. 403, 22 Pac.Rep. 317,319 ; Henry v. McClure,22 Pac. Rep. 319. Compare Darst v. Levy, 40 Neb. 593, 58 N. W. Rep. 1130. But in Alabama one merely claim- ing as a mortgagee under a mortgage executed after the attachment levy, and who is a stranger to the suit, can not move the court to dissolve the pending attachment on the ground of irregularities when the same has been pending for several terms. May v. Courtnay, 47 Ala. 185. 2. Shoe and Leather Bank v. Me- chanics' Bank, 89 N. Y. 440. 3. Key West Bldg. & Loan Ass'n V. Bank of Key West, (Sup.) 18 N. Y. S. 390; Allen v. Bank of Key West, 18 N. Y. S. 391, 63 Hun (N. Y.) 633. 4. Hodgman v. Barker, 17 N. Y. S. 911, 63 Hun (N. Y.) 631 ; Barkers. Ft. Ann Woolen Co., 27 N. Y. S. 1114; Central Nat. Bank v. Ft. Ann Woolen Co., (Sup.) 24 N. Y. S. 640, s. c. 27 N. Y. S. 1114 ; Central Nat. Bank v. Ft. Ann Woolen Co., 143 N. Y. App. 624, 37 N.E. Rep. 827. And he has the burden of showing affirmatively that his papers are suffi- cient to confer jurisdiction, and that his attachment was actually levied §345 WHEN THE MOTION MUST BE MADE. 641 ceedings, although his attachment may have been issued in another county.* The dissolution of an attachment at the instance of third persons who claim an interest in the property attached is usually by way of an intervening petition and will receive more particular attention hereinafter.^ § 345. (c) When the motion must be made — Waiver.* — The time within which a motion to dissolve an attachment must be made is largely controlled by special statutes, but on the prin- ciples of the common law it is the nature of a dilatory plea and should be made before pleading to the merits.* A plea in abatement, or any plea going to the merits, will be a waiver of exceptions which may be taken because of irregularities in form or substance of the affidavit, bond or writ, and of apparent irregularities in the issuance thereof.* And so will other acts, upon the property covered upon the prior attachment, for otherwise he does not show that he is "a person who has acquired alien," etc. Dayton V. McElwee Mfg. Co., (Sup.) 19 N. Y. S. 46, 22 Civil Proc. R. 227. What will be such a prima facie showing, see Pitts V. Scribner, (Sup.) 19 N. Y. S 519. 1. Pendleton v. Smith, 1 W. Va. 16. 2. See post, § 426. 3. In Minnesota a motion to vacate an order of attachment may be made prior to the levy. First Nat. Bank v. Randall, 38 Minn. 382, 37 N. W. Rep. 799. 4, Steamboat Farmer v. McCraw, 31 Ala. 659; Myers v. Perry, 1 La. Ann. 372; Brinegar v. Griffin, 2 La. Ann. 154; Ealer v. McAllister, 14 La. Ann. 821 ; Grey v. Young, Harp. (S. C.) 38; Callender v. Duncan, 2 Bailey (S. C.) Law 454. It must be made at the first term it can be made. Hall v. Brazelton, 40 Ala. 406; NeaU. Bookout, 30 Ga. 40; Irvin v. Howard, 37 Ga. 18; Mitten- berger v. Lloyd, 2 Dall. 79. Bat see Penman v. Gardner, 4 Yeates (Pa.) 6; Kearney v. McCullough, 5 Binn. (Pa.) 389; Tarbell v. Bradley, 27 Vt. 535. It must in Montana be made be- fore time to answer. Magee v. Fog- erty, 6 Mont. 237, 11 Pac. Rep. 668. 5. Williams v. Glassgo, 1 Nev. 533; Campbell v. Wilson, 6 Tex. 379 ; Dunn V. Crocker, 22 Ind. 324 ; Spaulding v. Simms, 4 Mete. (Ky.) 285; Hillyer v. Biglow, 47 Kan. 473, 28 Pac. Rep. 150; Bishop V. Fennerty, 46 Miss. 570; Carr v. Coopwood, 24 Miss. 256; Sy- mons V. Northern, 4 Jones (N. C.) L. 241 ; Garmon v. Barringer, 2 Dev. & B. (N. C.) L. 502; Memphis, etc., R. Co. V. Wilcox, 48 Pa. St. 161 ; Judah v. Duncan, 2 Bailey (S. C.) L.454 ; Stoney V. McNeill, Harper (S. C.) 156 ; Grey v. Young, Harper (S. C.) L. 38 ; Young v. Grey, Harper (S.C.) L. 38; Enders ». Steamer Henry Clay, 8 Rob. (La.) 30; Att. 41 642 DISSOLUTION OF ATTACHMENT. § 345 declarations or delays operating by way of estoppel.* But in Minnesota it is said that so long as the defendant's answer stands undisposed of, he may make a motion to dissolve the attachment.^ In Maryland a motion to quash an attachment because of subsequent defects in the proceeding may be entertained at any stage of the trial because it is a question that goes to the juris- Ealerr. McAllister, 14 La. Ann. 821; Barry v. Foyles, 1 Pet. 311 ; Vaughn r. Dawes, 17 Pac. Rep. 114. Contra, Hyde V. Nelson, 11 Mich. 353; Michels v. Stork, 44 Mich. 2 ; Sheldon v. Stewart, 43 Mich. 574. See, also, Drs. K. & K. U. S. Medical & Surgical Assoc, v. Post, etc., Job Printing Co., 58 Mich. 487. But it is not waived by a plea or answer merely denying the fraud al- leged and not going to the merits of the case. Harrisburg Boot and Shoe Co. V. Johnson, (Pa. Com. PL) 3 Pa- Dist. R. 433. Nor is it under the Ar- kansas statutes by trial and verdict where the verdict has been set aside on a motion for a new trial. Salmon V. Mills, 4 U. S. App. 101, 1 Cir. Ct. App. 278, 49 Fed. Rep. 333. Under such a rule it is, of course, waived by entering upon the trial of the case. Watson v. McAllister, 7 Martin (La.) 368 ; and will come too late if made after motion in arrest of default judgment. Norton v. Dow, 10 111. (5 Glim.) 459. Or after an appeal is taken from a judgment obtained in a lower court. Reynolds v. Simpkins, 67 Ala. 378; Voorhees v. Hoagland, 6 Blackf. (Ind.) 232; Wells v. St. Dizier, 9 La. Ann. 119. But not so under a statute which permits it to be made at any time be- fore an actual application of the at- tached property or the proceeds thereof to the payment of a judgment obtained in the action. Parsons v. Sprague, 65 How. (N. Y.) Pr. 151. The giving of a bond to procure the release of attached property is some- times held to be equivalent to an ap- pearance, and therefore a waiver of the right to move for a dissolution of the attachment. See atite, §§ 288 and 304; Paddock v. Matthews, 3 Mich. 18. But the more reasonable rule seems to be that where there is no legal right to attach there is no right to take a bond, and that the fact of having given a bond can not operate as a waiver or estoppel of the defendant's right to move to dismiss the attach- ment. Egan V. Lumsden, 2 Disney (Ohio) 168; Bruce v, Conyers, 54 Ga. 678 ; Glidden v. Whittier, 46 Fed. Rep. 437 ; Winters v. Pearson, 72 Cal. 553, 14 Pac. Rep. 304 ; Brinegar v. GriflBn, 2 La. Ann. 154; Myers v. Perry, 1 La. Ann. 372 ; Avett v. Albo, 21 La. Ann. 349 ; Edwards v. Prather, 22 La. Ann. 334. 1. Payment v. Church, 38 Mich. 776 ; Dunn V. Crocker, 22 Ind. 324. Agreeing that the sheriff may sell the attached property and hold the proceeds until final judgment will have such an effect. Wickham v. Nalty, 41 La. Ann. 284, 6 So. Rep. 123. In North Carolina it may be made before the return term of the summons in the original suit. Wilson v. Louis Cook Mfg. Co., 88 N. C. 5. 2. First Nat. Bank v. Randall, 38 Minn. 382, 37 N. W. Rep. 799. § 346 NOTICE OF MOTION. 643 diction of the court.' In Arkansas, Nebraska and Kansas likewise it may be interposed at any time before final judg- ment.^ In Michigan it may be made after a judgment has been ren- dered in an action on the debt for the collection of which the attachment was sought, if the case was not tried on its merits.^ And in New York likewise it may be made after entry of judg- ment and issue of execution (and even after the levy of execu- tion and appeal from a justice's court,*) ''at any time before the actual application of the attached property or the proceeds thereof.'"* In Wisconsin the court has power to dissolve an attachment for an insufficiency of the affidavit at any time, even after judgment.® Whenever the time within which a motion to dissolve an at- tachment may be made is limited by a statute, the motion must be made within such time or it will not be granted. Making a motion after the expiration of such time and calling it a " substituted motion " will not avoid the effect of the delay.' Such a statute refers to the application of the party complain- ing, and therefore when the same is made within the prescribed time, any delay or incompetency of the court will not effect the rights of the applicant.' §346. (d) Notice of motion. — A judge has no authority to release property from an attachment lien on an ex parte appli- cation. The plaintiff must be duly notified and given an op- 1. Evesson v. Selby, 32 Md. 340. Y.) Pr. 151, s. c. 30 Hun (N. Y.) 19; 2. Ward v. Carlton, 26 Ark. 662; National Broadway Bank v. Barker, Moline, Milburn and Stoddard Co. v. 14 N. Y. S. 629; Hodgman v. Barker, Curtis, 38 Neb. 520, 57 N. W. Rep. 161 ; 14 N. Y. S. 574. Stutzner v. Printz, 43 Neb. 306; Dog- 6. Goodyear Rubber Co. v. Knapp, gett V. Bell, 32 Kan. 298 ; Frazer Boot 61 Wis. 103. and Shoe Co. v. Derse, 41 Kan. 150, 7. Magee v. Fogerty, 6 Mont. 237, 21 Pac. Rep. 167; Guest v. Ramsey, 50 11 Pac. Rep. 668. Kan. 709, 33 Pac. Rep. 17. 8. Bledsoe v. Wright, 58 Tenn. 471. 3. Ray v. Gore, 73 Mich. 385, 41 N. The judgment is final (Sheppard v. W. Rep. 329. Guisler, 10 Wash. 41), but new motion 4. Woodmansee v. Rogers, 82 N. Y. may be made on new facts and new 88. papers. Sells Bros. Co. v. Potter Prod. 6. Parsons v. Sprague, 65 How. (N. Co., 80 Hun 654. 644 DISSOLUTION OF ATTACHMENT. § 347 portunity to be heard.* The notice must specify the grounds of the motion and point out wherein it will be urged that the writ was improperly issued.^ It is good practice to serve with the notice of motion copies of affidavits and papers which will be relied upon as grounds for the dissolution asked, ^ ' §347= (e) Essentials of the motion — Opposition thereto. — The party applying for the dissolution of an attachment must Uot only be in a position to be entitled to an order for the res- toration of the property/ but his motion papers must specify the grounds he relies upon therefor/ The irregularity or in- sufficiency must be explicitly pointed out,^ and he must aver his right to have the property released.' While it is the general rule, as hereinbefore stated,* that no errors other than those that appear upon the face of the pro- ceedings, will be relieved upon motion, and that other defects can only be reached by a plea or its equivalent,^ yet under the New York code an application to discharge or vacate an attach- ment may be made in furtherance of justice, upon the real merits of the application, or for irregularity, or for want of 1. Claflin V. Lisso, 31 La. Ann. 171; In Wisconsin, what will be a suf- Field V. Parke, 20 Johns. (N. Y.) 140; ficient copy of an order to show cause Doggett r. Bell, 32 Kan. 298; Smith- why an order should not be entered Frazer Boot andShoe Co. V. Derse, 41 dismissing the action, see Harrison Kan. 150, 21 Pac. Rep. 167; Guest v. Mach. Works v. Hosig, 73 Wis. 184, Ramsey, 50 Kan. 709, 33 Pac. Rep. 17. 41 N. W. Rep. 70. 2. Freeburn v. Glazer, 10 Cal. 337. 4. Price v. Reed, 20 Mich. 72; Pat- 3„ In South Carolina, where a mo- terson v. Goodrich, 31 Mich. 225; Zook tion was made to vacate an attach- v. Plough, 42 Mich. 487. ment levied on the interest of a non- 5. Blair v. Cleveland, 1 Stew. (Ala.) resident partner, a notice of motion 421; Freeborn v. Glazer, 10 Cal. 337; was sufficient where the affidavits and Osborne v. Robbins, 10 Mich. 277; papers served therewith showed that Cupit v. Park City Bank, (Utah) 37 the attachment defendant was sued on Pac. Rep. 564 ; Cupit v. Bank of Park a partnership debt with his copartner, City, (Utah) 40 Pac. Rep. 707. that he owned no property in the state 6. Windt v. Banniza, 2 Wash. 147, except his interest in the partnership 26 Pac. Rep. 189. effects, and that his interest had been 7. Johnson v. DeWitt, 36 Mich. 95; attached, although it did not state Macumbar v. Beam, 22 Mich. 395. that the motion would be made "on 8. See ante, §338. the ground'' that an interest of anon- 9. See post, §348, and Kohler v. resident partner, in partnership ef- Agassiz, 99 Cal. 9, 33 Pac. Rep. 741. fects was not liable to attachment. Whitfield V. Ilovey, 80 S. C. 117, 8 S. E. Rep. 840. § 348 DISSOLUTION OF plaintiff's right. 645 jurisdiction in the officer who granted it, or for fraud in ob- taining it, or for defective papers, or for any otlier cause/ And in South Dakota a defendant may unite in one motion, as grounds for the discharge of the attachment, the objections that the af- fidavit is insufficient in form of substance and that it is untrue in fact.^ In opposition to a motion to dissolve an attachment because of irregularities appearing on the face thereof, the plaintiff is confined to a narrow limit. When a motion is made to pro- cure the dissolution of attachment, on the ground of de- fective papers on which the attachment was granted, the plaintiff can not introduce additional affidavits or proof to sup- port his attachment. It must stand upon the merits of the origi- nal papers or fall because of their defects.^ § 348. Dissolution by denial of plaintiS's right to attach- ment — (a) General principles. — It is a fundamental principle of law of attachment in most states that before any valid at- tachment can be made, one of the statutory grounds therefor must actually exist. And that while the averment of such a ground in the affidavit may be sufficient for the issuance of the writ,* yet the ability of the plaintiff to sustain his attach- ment on dissolution proceedings will depend upon the truth of 1. Eowlesv. Hoare, 61 Barb. (N. Y.) Trows Printing, etc., Co. v. Hart, 60 266. Also posf, §351. How. (N. Y.) Pr. 190; Newell v. Whit- As to wliat questions the court will well, (Mont.) 40 Pac. Rep. 866. try on the hearing of such a motion, 4. Since the jurisdiction of the court see Lowenstein v. Salinger, 17 N. Y. depends upon the affidavit of the S. 70, 62 Hun (N. Y.) 622. plaintiff's belief of the non-residence 2. Wilcox V. Smith, (S. D.) 55 N. of the defendant, it follows that if W. Rep. 1107. such an affidavit is regular, and made 3. Steuben County Bank v. Alberger, in good faith a court can not coUater- 56 How. (N. Y.) Pr. 345; Geniu v. ally inquire into the fact of non-resi- Tompkins, 12 Barb. (N. Y.) 265; Wil- dence and declare the proceedings son V. Britton, 6 Abb. (N. Y.) Pr. 33; void. Weber v. Weitling, 18 N.J. Eq. Brewer v. Tucker, 13 Abb. (N. Y.) Pr. (3 Green.) 441. The question must be 76; Sutherland v. Bradner, 34 Hun raised at the proper time during the (N.Y.) 519; Thames, etc., Co. v. Dim- pendency of the proceedings, for if mick,i!2N.Y. S. 1096, 66 Hun (N. Y.) material allegations are not denied '^-^4 : Head v. W611ner, 6 N. Y. S. 916 ; they must be taken to be true. Wehle ■V. Kerbs, 6 Colo. 167. Fust, §351. 646 DISSOLUTION OF ATTACHMENT. §349 the facts averred as a ground therefor.^ Therefore it is com- petent always in such states to inquire, in some manner into the truth of the statements made to obtain a writ of attach- ment.* And the question at issue on such inquiry is not the belief of the affiant in the existence of the facts, but is the existence of the facts themselves.' § 349o (b) How such denial interposed. — The most general course pursued to obtain a dissolution of the attachment by denial of the existence of the ground alleged for the issuance thereof, is by way of a plea in abatement,* or by a plea in 1. Capehart v. Dowery, 10 W. Va. 130; Bundrem v. Denn, 25 Kan. 430; a7ite, §86. 2. Clarke v. Meixsell, 29 Md. 221 ; Branson v. Shinn, 13 N. J. L. (1 Green.) 250; Boyes v. Coppinger, 2 Yeates (Pa.) 277. In a few states the defendant is not allowed to call in question the truth of the affidavit on which the attach- ment issued. Mandel v. Peet, 18 Ark. 236; Taylor v. Ricards, 9 Ark. 378; Cloud V. Smith, 1 Tex. 611 ; Miller v. Chandler, 29 La. Ann. 88; Hermann V. Amedee, 30 La. Ann. 393. 3. Chenault v. Chapron, 5 Mo. 438. Sublett V. Wood, 76 Va. 318; Foster ^7. Illinski, 3 111. App. 345; Rice v. Morner, 64 Wis. 599; Davidson v. Hackett, 49 Wis. 186; Alexander v. Brown, 2 Disney (Ohio) 395. 4. Bates v. Jenkins, 1 111. (Breese) 411 ; Schulenberg v. Farwell, 84 111. 400; Boggs V. Bindskoff, 23 111. 66; Bennett v. Zabriskie, 2 N. Mex. 7 ; Wrompelmeir v. Moses, 3 Baxter (Tenn.) 467; Waggoner v. St. John, 10 Heisk. (Tenn.) 503 ; Mantz v. Hend- ley, 2 Hen. & M. (Va.) 308; Bank of the Valley v. Bank of Berkeley, 3 W. Va. 386; Ouzts v. Seabrook, 47 Ga. 359; Leak v. Moorman, Phill.(N. C.) L. 168 ; Claussen v. Easterling, 19 S. C. 515; Searcy v. Platte County, 10 Mo. 269 ; Havis v. Trapp, 2 Nott. & M. (S. C.) 130; Mayhew v. Dudley, 1 Pinney (Wis.) 95; Collins v. Nichols, 7 Ind. 447; Foster v. Dryfus, 16 Ind. 158 ; Brown v. Marsey, 3 Stew. (Ala.) 226; Middlebrook v. Ames, 5 Stew. & Porter (Ala.) 158; Brown v. Coats, 56 Ala. 439. In Alabama the want of a bond and affidavit is subject-matter for plea in abatement. Jones v. Pope, 6 Ala. 154; Free v. Howard, 44 Ala. 195; Free u. Hukill, 44 Ala. 197; Kirkman V. Patton, 19 Ala. 32. And in Arkansas it is held that the want of a bond, or of a proper bond, is pleadable in abatement to the whole suit. Delano v. Kennedy, 5 Ark. 457. But in Texas the want of a bond and affidavit can only be questioned by a motion to quash the attachment. Messner v. Hutchins, 17 Tex. 597; Roos V. Lewyn, 5 Tex. Civ. App. 593, 23 S. W. Rep. 450. Also it seems that the objection that the person who made the affidavit or executed the bond as agent for the plaintiff had no authority so to do, must be made by plea in abatement to the writ. City Nat. Bank v. Cupp, 59 Tex. 268. § 350 WHO MAY QUESTION THE RIGHT TO ATTACHMENT. 647 the nature of a plea in abatement/ It can not be effected by demurrer to the writ f nor by demurrer to the declara- tion.^ §350. (c) Who may question the right to attachment. — The debtor alone is the person to whom belongs the right to question the existence of the plaintiff's alleged grounds for attachment. It may not be done by a creditor who claims a fund resulting from the sale of the property nor by a subse- quent attaching creditor.* The rights of third persons must be urged in some other manner. The common law courts are 1. Mense v. Osbern, 5 Mo. 544 ; Gra- ham V. Bradbury, 7 Mo. 281 ; Swan v. OTallon, 7 Mo. 231 ; Diner v. Court- ney, 7 Mo, 500; Hatry v. Shuman, 13 Mo. 547 ; Cannon v. McManus, 17 Mo. 345 ', Haselton v. Ausherman, 29 Mo. App. 451. In Wisconsin it is done by an answer which, in its nature, is like a common law plea in abatement, but it need not separately deny each fact stated in the affidavit. A general denial is suffi- cient. Armstrong©. Blodgett, 33 Wis. 284. In Iowa it is by motion to quash. Halloway v. Herryford, 9 Iowa 353. In ^lichigan the truth of facts stated in the affidavit are questioned on a motion made before a judge or circuit court commissioner as provided by the statute. Roelofson v. Hatch, 3 Mich. 227. Bower v. Town, 12 Mich. 230. In Louisiana the falsehood of the affidavit is brought to the attention of the court by a rule on the plaintiff to show cause why the attachment should not be dismissed. Read v. Ware, 2 La. Ann. 498. In Alabama, an attachment issued for a cause if not warranted by the statute, can not be reached by plea in abatement. It must be by rule on the plaintiff to show cause why the writ and levy should not be dissolved and must precede a plea to the merits. Drakford v. Turk, 75 Ala. 339 ; Adair V. Stone, 81 Ala. 113 ; Rich v. Thorn- ton, 69 Ala. 473 ; Brown v. Cotes, 56 Ala. 439. 2. Roberts v. Burke, 6 Ala. 348. 3. Jordan v. Hazard, 10 Ala. 221. Essentials of the plea. In Tennessee such a plea in abatement must be verified by written oath and must contain positive form of statement. A statement on information and belief is not sufficient. Wrompelmeir v. Moses, 3 Baxter (Tenn.) 467. But in Georgia, Kansas and Missouri this is not necessary. Ouzts v. Seabrook, 47 Ga. 359 ; Wm. W. Kendall Boot and Shoe Co. V. August, 51 Kan. 53, 32 Pac. Rep. 635; Swain v. O'Fallon, 7 Mo. 231. In Virginia a plea in abate- ment should not conclude with pray- ing judgment if the plaintiff ought not to maintain his attachment and action, but that the attachment be quashed. Mantz v. Hendley, 2 Hen. and M. (Va.) 308. 4. First Nat. Bank v. Greenwood, 79 Wis. 269, 45 N. W. Rep. 810; Good- bar V. City Nat. Bank, 78 Tex. 461, 14 S. W. Rep. 831 ; Foster v. Higginbot- ham, 49 Ga. 263. 648 DISSOLUTION OF ATTACHMENT. §§ 351, 352 always open to an action of replevin in such cases, but to re- lieve such claimant from the expense of an independent pro- ceeding, many statutes permit him to come into the case and be heard on an intervening petition.^ §351. (d) When denial maybe interposed. — Following the general rule of common law pleading, that dilatory pleas must be interposed before the filing of a plea in bar, it is held that by filing a plea or answer going to the merits of the action the defendant waives his right to file a plea in abatement or a plea in the nature of a plea in abatement.^ But in Indiana, Illinois and Georgia two defenses, one denying the right to have an attachment to enforce the payment of the alleged de- mand, and the other denying the existence of a legal demand, are said to be perfectly consistent, because one goes to the writ, and the other to the declaration; and for this reason both sets of issues may be there embraced together and all tried at the same time before the same jury.' But the contrary rule obtains in Missouri.* It may be said to be the general rule that giving a bond to obtain the possession of the attached property is not a waiver of a party's right to show that the facts on which the attach- ment was obtained are unfounded, or that the property seized did not belong to him.® §352. (e) Trial of issues raised by denial of §:roundsof attachment. — The trial of the sufl&ciency of the alleged grounds for attachment, as raised by plea in abatement or its equiva- 1. See post, §426, "Interveners." davit must be made the same must of 2. Green v. Craig, 47 Mo. 90; Shar- course be strictly observed. Neal v. key V. Williams, 20 Mo. App. 681 ; Bookout, 30 Ga. 40; Irwin r. Howard, Kritzer v. Smith, 21 Mo. 296 ; Hatry r. 37 Ga. 18. Shuman, 13 Mo. 547; Lewinthal v. S.Foster v. Dryfuss, 16 Ind. 158; Mississippi Mills, 55 Miss. 110; Wood- Hawkins v. Albright, 70 111. 87; ruff V. Sanders, 18 Wis. 161 ; Wag- Parker v. Brady, 56 Ga. 372. goner v. St. John, 10 Heisk. (Tenn.) 4. Cannon v. McManus, 17 Mo. 345. 503 ;Meggs-y. Shaffer, Hardin (Ky.) 65. 5. Ante, §§288 and 304; Bauer v. When a statute prescribes the time Antoine, 22 La. Ann. 145; Quine v. within which the traverse of the affi- Mayes, 2 Rob. (La.) 510. § 353 EVIDENCE, BURDEN OF PROOF. 649 lent, should be separate from the trial of the principal action » For if judgment in the main action be entered prior to the trial of the traverse of the right of attachment it will be vacated at the first term thereafter.^ It may be tried by the court,' with- out the aid of a jury;* or a jury may generally be impanelled to try the issues of fact.^ And if a jury be demanded, the trial must be in the county where the suit is pending.* §353. (f) Evidence, burden of proof.— When an applica- tion is made for the dissolution of an attachment, proof to pro- cure it must be good and strong.' The matters relied on must be distinctly and unequivocally stated/ showing a satisfactory and clear right to have the attachment discharged.' Some states confine the evidence upon the issues raised to affidavits and counter affidavits, some permit a trial of the issues upon oral evidence and some upon either oral testimony or by affida- vit. In a state of the latter class it has been held that where the defendant supports his application for a discharge of the attachment by affidavit, he can not thereafter depart from that 1 Prices Bescher, 12 Heisk/.Tenn.) the statutes of the state, providing that 379- Gowen v. Hanson, 55 Wis. 341 ; in actions for the recovery of money Allen .. Champlin, 32 La. Ann. 511. or specific property, the issues of fact Except where allowable to be tried may be tried by a jury, will entitle aa at the same time. Foster t,. Dryfuss, attachment defendant to a tria by 16 Ind. 158; Hawkins v. Albright, 70 jury on an aPP^^^'^tWor dissolution j^^ g^ Wearne v. France, 3 Wyo. 2/3, 21 Fac. 2 Davidson t,.Hackett, 45 Wis. 208. Rep. 703. Likewise, in Washington 3. Gowan v. Hanson, 55 Wis. 341. a jury can not be demanded^ Windt Also by a court commissioner when v. Banniza, 2 Wash. 147, 26 Pac. Kep. BO provided by statute. Genessee 189. Sav Bank v. Michigan B. Co., 52 And where tried at the same time jyj-p^ 164 withthemain action the jury determ- 4 Gover v. Barnes, 15 Md. 576. ines the facts. Foster v. ^rjfnss, 16 5. Forbes v. Porter, 25 Fla. 362, 6 Ind. 158; Hawkins v. Albright, 70 So. Rep. 62; Stewart r. Katz, 30 Md. HI. 87. 334 • Howard v. Oppenheimer, 25 Md. 6. Canova v. Colby, 16 b la. lb/. 350'; Harmon r. Jenks, 84 Ala. 74, 4 7. Moored. Angiolette, 12 Martin So. Rep. 260. (I^a) '^32. But in Wyoming it is held that 8. Cain v. Jennings, 3 Tenn. un. neither the article of the Constitution 131. , ,, „^ t oqt of the United States providing for trial 9. McLaren v. Hall, 26 la. 297. by jury "in suits at common law" nor 650 DISSOLUTION OF ATTACHMENT. § 353 manner of proof and support it by oral testimony.* Where it is provided that the evidence shall or may be by afl&davit, it is usually in a state providing specially for the denial of the right to have an attachment upon a "motion" and not upon a plea;^ and under a provision that objections going to the merits of the alleged grounds for attachment may be included in the same application with objections going to irregularities in the attachment papers, and the issue of the attachment. But the general principles of evidence are the same as govern motions to dissolve because of irregularity , and pleas denying the grounds for attachment. If the defendant moves on the original papers only, his proof is confined to this and the plaintiff can not in- troduce affidavits to sustain his attachment.' V/here the defendant applies for a dissolution by denying the existence of the grounds for attachment and supports his application by affidavit, the plaintiff may read additional affi- davits to those on which his attachment was issued ; for the question is not then one of jurisdiction, but one of fact.* The 1. Hansen v. Doherty, 1 Wash. St. ficiency of the statement of the ground 461, 25 Pac. Rep. 297. for attachment. First Nat. Bank v. But in Kansas the defendant was Swan, 3Wyo. 356, 23 Pac. Rep. 743. permitted to cross-examine the plaint- 4. Allen v. Meyer, 73 N. Y. 1 ; iff, although the affidavits of both Houghton v. Ault, 16 How. (N. Y.) parties were before the court. Tyler v. Pr. 77 ; Hill v. Bond, 22 How. (N. Y.) Safford, 24 Kan. 580. Pr. 272; Gasherie v. Apple, 14 Abb. 2. Wearne v. France, 3 Wyo. 273, 21 (N. Y.) Pr. 64 ; Furman v. Walters, 13 Pac. Rep. 703. How. (N. Y.) Pr. 348; New York and 3. Trow's, etc., Co. v. Hart, 60 How. Erie Bank v. Codd, 11 How. (N. Y.) (N. Y.) Pr. 190; Thames, etc., Co. v. Pr. 221; Bank of Commerce v. Rut- Dimmick, 66 Hun (N. Y.) 634 ; Suth- land, etc., R. R. Co., 10 How. (N. Y.) erland v. Bradner, 34 Hun (N. Y.) Pr. 1; St. Armant v. De Beixeedon, 3 519; Steuben County Bank v. Alber- Sandf. (N. Y.) 703; Genin ??. Tomp- ger, 56 How. (N. Y.) Pr. 345 ; Dickin- kins, 12 Barb. (N. Y.) 265 ; Morgan v. son V. Benham, 10 Abb. (N. Y.) Pr. Avery, 7 Barb. (N. Y.) 656; Yates v. 390. North, 44 N. Y. 271 ; First Nat. Bank ' The defendant may properly use his v. Swan, 3 Wyo. 366, 23 Pac. Rep. verified answer for the purpose of an 743; Baer v. Otto, 34 Ohio State 11; affidavit so far as its contents are per- Johnson v. Laughlin, 7 Kan. 359; tinent. Nelson v. Munch, 23 Minn. 229. Hanna v. Barrett, 39 Kan. 446, 18 Pac. In Wyoming the denial of the insaf- Rep. 497. ficiency of the plaintiff's affidavit He can not show by his opposing raises, among other Questions, the svf- affidavits any additional act, as of ^ 363 EVIDENCE, BURDEN OF PROOF. 651 rule is (in states permitting a motion to discharge because of irregularities, to be united in an application to discharge because of insufficient grounds) that when the moving affidavit con- tains new matter the plaintiff will be allowed to read couliter- affidavits, and affidavits in support of the original order grant- ing the attachment.' But the plaintiff's counter-affidavits should be confined to such matters as will contradict or explain the affidavits of the moving party, and not such as will remedy the defects in the l^apers,^ for that is the province of an amendmento The rules of evidence, when affidavits are relied upon in dis- solution proceedings, are the same as when oral testimony is offered to contradict the alleged grounds for attachment. If the defendant by affidavit denies the truth of the alleged grounds, the plaintiff should be required to file such evidence as he de- sires, after which the defendant should file such evidence as he may see fit in contradiction thereof, and then the plaintiff should be allowed to file rebutting affidavits.^ On a denial of the grounds for attachment, ^. e., of the truth of the facts stated in the plaintiff's affidavit, the court is not con- fined to the question whether the attachment ought to have fraud, in support of his application for The plaintiff is not entitled, as a attachment, but he may show facts matter of right, in Kansas, to notice which have taken place since his orig- from the defendant that affidavits will inal application was made, tending to be used on the hearing of an applica- sliow a change in the relation and tion to dissolve an attachment for condition of the parties which affected want of sufficient grounds. Myer the right to apply for dissolution. Bros. Drug Co. w. Malm, 47 Kan. 762, Dickinson v. Benham, 12 Abb. (N. Y.) 28. Pac. Rep. 1011. Pr. 158, 20 How. (N. Y.) Pr. 343. The plaintiff may read affidavits Depositions may be used in evidence identifying the affidavits on which the although they be taken upon insuffi- attachment was granted. Hallock v. cient notice, for being written declara- Van Camp, 8 N. Y. S. 588, 55 Hun (N. tions of the witnesses upon oath, they Y.) 1. fulfill the requirements of the affidavit 2. Yates v. Griffith, 44 N. Y. 271; without notice. Hanna v. Barrett, 39 Rowles v. Hoare, 61 Barb. (N. Y.) Kan. 446, 18 Pac. Rep. 497; Talbot v. 266; New York and Erie Bank v. Pierce, 14 B. Mon. (Ky.) 158. Codd, 11 How. (N. Y.) Pr. 221 ; Wil- 1. Buell V. Van Camp, 6 N. Y. S. son v. Britton, 6 Abb. (N. Y.) Pr. 33. 365; Steuben County Bank v. Alberg- 3. Jordan v. Dewey, (Neb.) 59 N. er, 56 How. (N. Y.) Pr. 345. W. Rep. 88. 652 DISSOLUTION OF ATTACHMENT. § 353 been issued on the original papers, as it is on a motion to dissolve for irregularity :' nor will the court on the other extreme try the merits of the main action. The only question to be de- termined is whether, on the facts as presented, the plaintiff's at- tachment will or will not be sustained.^ But this rule wall not prevent the defendant from stating any pertinent fact tending to explain the transaction out of which the suit arose, although in doing so he make it appear that the amount stated to be due is too large. ^ The burden of proof , where the attachment defendant does in some proper mode negative the truth or existence of the facts alleged in the affidavit to give ground for the issuance of the plaintiff's attachment, rests upon the plaintiff. Every fact by which the defendant may show that the attachment was im- properly issued is cognizable by the court, and evidence dehors the proceeding may be resorted to.* The burden being upon the plaintiff to show wdiy the attachment should not be dis- charged, he must by preponderance of competent evidence establish the existence of facts justifying the issuing of the writ or his attachment will be dissolved.® The positive denial on oath of the defendant will procure a dissolution, if the plaint- 1. Ante, § 348. v. Comrs. of Rice Co., 20 Kan. 575; 2. O'Reilly v. Freel, 37 How. (N. Hermann. Amedee, 30 La. Ann., Part Y.) Pr. 272; Genin v. Tompkins, 12 I, 393; Genessee Co. Sav. Bank v. Barb. (N.Y.) 265 ; Boscher I'. Roullier, Michigan Barge Co., 52 Mich. 164; 4 Abb. (N. Y.) Pr. 396 ; Nelson v. Swan v. O'Fallon, 7 Mo. 231 ; Dolan v. Gibbs, 18 Minn. 541; Hamilton v. Armstrong, 35 Neb. 339, 53 N.W, Rep. Johnson, 32 Neb. 730, 49 N. W. Rep. 132 ; Steele v. Dodd, 14 Neb. 496 ; Cos- 702; Carnahan v. Gustine, (Okl.) 37 ton ?;. Paige, 9 Ohio St. 397; Wyman Pac. Rep. 594. v. Wilmarth, 1 S. D. 35 and 172, 46 3. Hamilton v. Johnson, 32 Neb. N. W. Rep. 190; Wilcox v. Smith, (S. 730, 49 N. W. Rep. 702. D.) 55 N. W. Rep. 1107; Godbe Pitts 4. Campbell v. Morris, 3Har. & M. Drug Co. v. Allen, 8 Utah 117, 29 Pac. (Md.)535; Govern. Barnes, 15 Md. Rep. 881; Sublett v. Wood, 76 (1 576 ; S. P. Talbotv. Pierce, 14 B. Mon. Hansb.) Va. 318. Citizens' State Bank (Ky.) 195. V. Baird, 42Neb.219,60 N. W. Rep. 551. 5. Ridgeway v. Smith, 17 111. .33; A refusal of the plaintiff to intro- Champion Mach. Co. v. Updyke, 48 duce evidence supporting the aver- Kan.404, 29 Pac. Rep. 573; Wholesale mentof his alleged grounds will entitle Grocery Co. tJ. Records, 40 Kan. 119, the defendant to a dissolution. Mitch- 19 Pac. Rep. 346 ; Becker v. Langford, ell v. Carney, 41 Kan. 139, 21 Pac.Rep. 39 Kan. 35, 17 Pac. Rep. 648; Conner 158. §353 EVIDENCE, BURDEN OF PROOF. 653 iff's averments made to procure the attachment are not sup- ported by competent evidence.^ But if several grounds ar alleged the attachment will not be dissolved unless they are all denied- for one ground is sufficient to maintain an attach- ment.^' A mere reiteration of the general statement of his orig- 1 Hilton V. Ross, 9 Neb. 406; Miller V. Godfrey, 1 Colo. App. 177, 27 Pac. ilep. 1016 ; Rickel v.Strelinger,(Mich.) 60 N. W. Rep. 307. Where, however, the rule obtains that a court will not vacate an attach- ment unless there is an entire absence of fact to authorize it, the plaintiff is not bound to file rebutting affidavits in order to have the benefit of such rule. He may reply upon his former attachment papers for that purpose. Brown v. Wigton, 63 Hun (N. Y.) 633, 18 N Y S. 490. 2. Tucker v. Frederick, 28 Mo. 574; Keith V. Stetter, 25 Kan. 100; Dumay ,;. Banchez, 71 Md. 508, 18 Atl. Rep. 890; Jones v. Meyer, (S. D.) 63 N. W. Rep. 773; «n{e, §§ 142 and 145. JSlon-residence alleged by the plaintiff as a ground for attachment will not be denied by the defendant's affidavit of residence. Further evidence must be procured. Shadduck r. Marsh, 21 N. J. L. 434 : Shrewsbury v. Pearson, 1 McCord(S.C.), 331. But an attachment on the statutory ground that the de- fendant did not reside within the coun- ty in which the writ issued "at the time of the issuing thereof" was dis- missed on a showing that he was with- in the county on the day the writ was issued, although the sheriff's return stated that the defendant was not found. Kaufman v. Musin, (Pa. Com. PI.) 9 Pa. Co. Ct. Rep. 414. It will not be controverted as a ground for attachment by showing that the de- fendant has since become a resident. Larimer v. Kelley, 10 Kan. 298; Of- futt V. Edwards, 9 Rob. (La.) 90; Sim- mons V. Jacobs, 15 La. Ann. 425. But the defendant may show that although he has a fixed abode in another state he still has his domicile in this state with an intention to return, and that he has left his family, upon whom process could be served, etc. Bowers V. Ross, 55 Miss. 231. Absconding as a ground for attach- ment implies a departure with inte7it to injure or defraud. See ante, § 87. Therefore the plaintiff must prove that the defendant left home with an in= tent to abscond. Branson v, Shinn, 13 N. J. L. 250; Hoss v. Wilhams, 24 La. Ann. 568; Eaton v. Wells, 18 Minn. 410; Folsom v. Teichner, 27 Mich. 107. And it will be contra- dicted by showing that he left home for an honest purpose. City Bank v. Men-it, 13 N. J. L. 131; Garlinghouse V. Mulvane, 40 Kan. 428, 19 Pac. Rep. 798. Or that he was served with pro- cess. Temple v. Cochran, 13 Mo. 116. In one case the court refused to dis- solve a domestic attachment where there was strong circumstantial evi- dence that the departure was with the design to defraud when the defendant had declared he went away to collect debts. Gibson V. McLaughUn, Browne, Pa. 292. Bemoval as a ground for attachment resembles "absconding." See ante, § 106. And the averment that the de- fendant has removed or is about to re- move himself or property must be proven by the plaintiff by a preponder- ance of evidence. FiUngan affidavit de- nying the charges of fraud made by the plaintiff will entitle the defendant to a dissolution unless the plaintiff make further proof. McPike v. Atwell, 34 654 DISSOLUTION OF ATTACHMENT. §353 inal affidavit in the language of the statute, or statement of Kan. 142. As to what evidence has Bustained the plaintiff's allegations, see O'Reillys. Freel,37 How. (N. Y.) Pr. 272; Livermore v. Rhodes, 27 How. (N. Y.) Pr. 506; Dickinson v. Benham, 12 Abb. (N. Y.) Pr. 158; Gasherie v. Apple, 14 Abb. (N. Y.) Pr. 64; Swezey v. Bartlett, 3 Abb. (N. Y.) Pr. n. s. 444. But a defendant's affi- davit, when contradicted by the affi- davits of four other persons based upon the defendant's acts and declara- tion, will not procure a dissolution. William Deering & Co. v. Warren, 1 S. D. 35, 44 N. AV. Rep. 1068. An at- tachment on the ground that the de- fendant is about to remove the prop- erty from the state will be dissolved on showing by affidavit that the prop- erty was exempt. Hastings v. Phoe- nix, 59 Iowa 394. Fraud as a ground for attachment must be proven by a preponderance of testimony on the part of the plaintiff when the alleged acts constituting the fraud are denied by the defendant's affidavit. Towle v. Lamphere, 8 111. App. 399; Robinson v. Melvin, 14 Kan. 484 ; Cuendet v. Lahmer, 16 Kan. 527; Hodson v. Tootle, 28 Kan. 317; Iosco County Sav. Bankr). Barnes, 100 Mich. 1, 58 N. W. Rep. 606; Meyer v. Evans, 27 Neb. 367, 43 N. W. Rep. 109; Strauss v. Abraham, 32 Fed. Rep. 310 ; Burrus v. Trant, 88 Va. 980, 14 S. E. Rep. 845; Kenny v. Wallace, 87 Ga. 724, 13 S. E. Rep. 744; Kahn v. Angus, 61 Wis. 264; Estesr. Chesney, 54 Ark. 463, 16 S. W. Rep. 267. If the plaintiff's affidavit for attach- ment contain a general averment of fraud and the same be denied by the defendant in general terms, the plaint- iff has then the burden of showing at the hearing, by deposition or other- wise, specific acts of fraud or fraudu- lent intent on the part of the defend- ant. Wells V. Hogan, (Pa. Com. PI.) 2 Pa. Dist. R. 98. A fraudulent pur- chase of a part of the goods only will not be sufficient to procure a dissolu- tion. Dolan V. Armstrong, 35 Neb. 339, 53 N. W. Rep. 132 ; ante, § 125. If the fraudulent representations relied on were not made by the defendant, nor by his authority, the attachment will be dismissed. Lodge v. Rose Valley Mills, (Pa. Com. PI.) 11 Pa. Co. R. 667 ; Lodge v. Rose Valley Mills, (Pa. Com. PI.) 1 Pa. Dist. R. 811. That a general negation of general averments in the affidavit will not put such allegations in issue, see Hanson V. Doherty, 1 Wash. 461, 25 Pac. Rep. 297. Secretion or disposal of "property" with intent to defraud does not neces- sitate proof of a secretion or disposal of all the defendant's property. Weil- ler V. Schreiber, 63 How. (N. Y.) Pr. 491. And an affidavit by the defend- ant that he never designed "selling and disposing of" his property to de- fraud his creditors, and that he in- tended to sell and dispose of it only in the regular course of trade is suffi- cient to place the burden of proof upon the plaintiff. Noyes v. Lane, 1 S. D. 125, 45 N. W. Rep. 327; Lord v. Wirt, 96 Mich. 415, 56 N. W. Rep. 7 ; Smith V. Boyer, 29 Neb. 76, 45 N. W. Rep. 265. But if the defendant fail to deny the charge of secretion, although he deny other alleged grounds for at- tachment the dissolution will be re- fused. Hornick Drug Co. v. Lane, 1 S. D. 129, 45 N. W. Rep. 329. Where an effort is made to have an attachment dissolved which has issued on the ground of fraud under a statute requiring the averment of the facts constituting the fraud, the dissolution § 353 EVIDENCE, BURDEN OF PROOF. 655 opinion or belief, is not sufficient.^ But when supporting evidence is given which is fairly preponderating the attach- ment will not be vacated.^ Nor will the court dissolve an at- tachment in a doubtful case.' Where the plaintiff has alleged that the defendant has done certain acts which give a ground for attachment, the court, in proceedings to dissolve the attachment inquires whether the defendant has actually done as the plaintiff believes, for though the fact that the plaintiff had good reason to believe a proper ground existed will be sufficient for the issuance of the writ, the existence of reasons for his belief is not in issue in pro- ceedings for dissolution and will not support the attachment.* After the defendant has made a showing to procure a dissolu- tion of the attachment, the plaintiff has a right to introduce evidence in rebuttal and the court can not disregard such proof introduced by the plaintiff without making such proceedings fail on appeal,* The right to open and close is with the attachment plaintiff when the defendant has moved the court to dissolve the attach- ment; because the burden of proof rests upon the plaintiff. He is entitled to the opening and closing argument,^ and may be required to produce his evidence first.' will not be granted unless the al- I.Jones v. Swenk, 51 Minn. 285; leged acts are denied, for a failure to 53 N. W. Rep. 634. deny them admits, for the purpose of 2. Walton v. Chadwick, (Super. N. the proceeding, the truth of the affi- Y.) 26 N. Y. S. 789, 6 Misc. R. 293. davit which is sufficient in itself to 3. Shrewsbury v. Pearson, 1 Mc- warrant the issuance of the attach- Cord (S. C.) 331. ment. Wickham v. Stern, 9 N. Y. S. 4. Blanchard v. Brown, 42 Mich. 803, 18 Civ. Proc. Rep. 63 ; Rothschild 46 ; Folsom v. Teichner, 27 Mich. 107 ; V. Mooney, 13 N. Y. S. 125, 59 Hun Rheinhart v. Grant, 24 Mo. App. 154. 622. That the plaintiff under such a 5. Cahen v. Mahoney, (Cal.) 12Pac. statute can not prove the existence of Rep. 300. the facts authorizing the issuing of 6. Gibson v. McLaughlin, 1 Browne theattachmentby other affidavits, but (Pa.) 292; Olds W. Co. v. Benedict, must rely on the original papers upon 25 Neb. 372 ; Jordan v. Dewey, 40 Neb. which the writ was granted, see Ap- 639, 59 N. W. Rep. 88. pleton V. Speer, 57 N. Y. Sup. Ct. 119 ; 7. Wright v. Rambo, 21 Gratt. (Va.) 6 N. Y. S. 511, and Myers v. White- 158; Sublett v. Wood, 76 Va. 318. heart, 24 S. C. 196. 656 DISSOLUTION OF ATTACHMENT. § 354 § 354. Judg:ment dissolvino^ attachment — Effect thereof. — In proceedings to obtain the dissolution of the attachment the judgment will be in most states merely that the writ abate or that the attachment proceedings be dismissed at the cost of the plaintiff.^ The judgment dissolving the attachment will be conclusive as between the parties until it is reversed on error,' or on appeal where an appeal is specially provided for.^ Where there are several defendants, as in the case of a co- partnership, and an attachment has been issued against all and levied upon all the (partnership) property and but one defendant pleads in abatement, the judgment, upon a finding in his favor, should be the abatement of the attachment as to the defendant who pleaded therein.* The effect of a dissolution of the attachment is that in all cases where there has been personal service upon the defendant or a voluntary general appearance by him, the action will pro- ceed as though it had been an ordinary common law action commenced by a writ of summons or its equivalent; that is to say where the attachment is not necessary to give the court jurisdiction of the cause, the dissolution of the attachment de- feats that particular writ and does not touch the merits of the action or dismiss the cause. They are independent proceed- ings.® But where the attachment is not a mere incident to the 1. Wright V. Rambo, 21 Gratt. (Va.) Jacobson, 77 Iowa 582, 42 N. W. Rep. 158; Evans v. Saul, 8 Martin, N. S. 499. (La.) 247. 4. Hill v. Bell, 111 -Mo. Sup. 35, 19 S. As to the recovery of damages from W. Rep. 959. the plaintiff after dissolution of at- As to such a dissolution in Kansas, tachment because of having wrong- see Stone v. Boone, 24 Kan. 337. fully or maliciously caused the same 5. Boggs v. Bindskoff, 23 111. 65; to issue, see post, § 370, "Liability of Focke v. Hardeman, 67 Tex. 173, 2 S. the Plaintiff." and an«e, §182, "Action W. Rep. 363 ; Lewenthall v. Missis- on the Bond." sippi Mills, 55 Miss. 101; Camp v. 2. Strauss v. Cooch, 47 Ohio 115, 24 Cahn, 53 Ga. 558; Phillips v. Hines, N. E. Rep. 1071; Hoge v. Norton, 22 33 Miss. 163; Reynolds v. Jordan, 19 Kan. 374; Swezey v. Bartlett, 3 Abb. Ga. 436; Schoppenhast v. Bollman, 21 (N. Y.) Pr. n. s. 444; Dunn v. Myers, Ind. 280; Paul v. Ward, 21 Ind. 211; 3 Yerger (Tenn.) 413. Excelsior Fork Co. v. Lukens, 38 Ind. 3. Danforth v. Rupert, 11 Iowa 547; 438; Bates v. Crow, 57 Miss. 676; Ma- Ryan V. Heenan, 76 Iowa 589, 41 N. lone v. Lindley, 1 Phila. 192 (288) ; W. Rep. 367; McCormick, etc., Co. v. Bayersdorfer v. Hart, 13 Phila. 192; ^354 JUDGMENT DISSOLVING ATTACHMENT. 657 main action, and is the foundation of the suit and necessary to the jurisdiction of the court, an order setting aside the at- tachment will terminate the action unless the proceeding is taken up for review/ Certainly no illegal attachment can stand as a summons.^ Where also a statute permits an attach- ment to issue upon a debt not due, a dissolution of the attach- ment proceedings will be a termination thereof, because in no proceeding but by attachment can an action be maintained be- fore the demand has matured.' The dissolution of the attachment dissolves the attachment lien and discharges the property from the effect thereof.* It then becomes the duty of the officer to turn over the property to the true owner who is prima facie defendant in the attach- ment.* Unless particularly required by the statute it is not necessary that the court order the property to be delivered up Bundrem v. Denn, 25 Kan. 430 ; Staple- ton V. Orr, 43 Kan. 170, 23 Pac. Rep. 109 ; Hills V. Moore, 40 Mich. 210 ; Hill V. Harding, 93 111. 77; Schulenberg ??. Farwell, 84 111. 400; Light v. Isear, 28 S. C. 440, 6 S. E. Rep. 284; Ouzst v. Seabrook, 47 Ga. 359; ante, § 4. 1. Watson V. Simpson, 15 La. Ann, 709; Morrison v. Ream, 1 Pinney (Wis.) 244; ante, §§ 5 and 216. 2. Kennedy v. Chumar, 26 N. J. L., 2 Dutch. 305. 3. Voorhis v. Michaelis, 45 Kan. 255, 25 Pac. Rep. 592 ; Gowen v. Hanson, 55 Wis. 341 ; Moore v. Corley, (Tex.) 16 S. W. Rep. 787 ; Wingo v. Purdy, 87 Va. 472, 12 S. E. Rep. 970. 4. Harrison v. Trader, 29 Ark. 85 ; Currens v. Ratcliffe, 9 Iowa 309 ; Har- row V. Lyon, 3 G. Green (Iowa) 157. 5. Jackman v. Anderson, 33 Ark. 414 ; McReady v. Rogers, 1 Neb. 124 ; Felker ??.■ Emerson, 17 Vt. 101; Gass V. Williams, 46 Ind. 253; State v. Fitz- patrick, 64 Mo. 185; Ryan Drug Co. V. Peacock, 40 Minn. 470, 42 N. W. Rep. 289; Hamilton v. Kilpatrick, (Tex. Civ. App.) 29 S. W. Rep. 819. Att. 42 Where the defendant has sold the property during the pendency of the action and has notified the officer of that fact, it is his duty, on dissolution of the attachment, to deliver the prop- erty to the vendee. State v. Fitzpat- rick, 64 Mo. 185. It is no part of the officer's duty to retain the property to enable the plaintiff to appeal from the order dis- solving it and to give a stay-bond. Ryan Drug Co. v. Peacock, 40 Minn. 470, 42 N. W. Rep. 298. The officer has a right to be reim- bursed by the defendant for all neces- sary expenses he has incurred in get- ting possession and in keeping the property. McReady v. Rogers, 1 Neb. 124; ante, §§ 263 and 285. But that the officer has no further lien upon the property therefor after the dissolution of the attachment, see Felker v. Emerson, 17 Vt. 101. When an attachment is dissolved, or what is the same thing, when a writ is quashed, the bond given for the re- delivery of the attached property being 658 DISSOLUTION OF ATTACHMENT. § 354 to the defendant. But when the statute so requires it is im- perative that such an order be entered.^ But no order of court is required to give effect to the dissolution of attachment on land.^ When the dissolution of an attachment is sought upon prop- erty which may be separated, and it is found that it should be dismissed for illegality as to a part, that much of the property may be discharged and the attachment may stand for so much as it could properly issue for." AVhere a plaintiff sued out two attachments against the same defendant on the same grounds and the defendant asked a dis- solution of ''the attachment" for the reason that the alleged grounds did not exist, and both the parties treated the request as being addressed to both writs, the court properly dissolved both attachments.* Where a court dissolves an attachment on a motion made be- fore the final hearing of the case, such refusal is not final in a sense that will preclude the same court from discharging it at the final hearing.* And the denial of a motion to dissolve an attachment, when such motion is based upon one ground for dissolution, is no bar to a second motion to vacate the attach- ment based upon another ground for dissolution, although the party might have urged the latter ground on his former mo- tion.^ Where, however, an attachment has been vacated by the court, after opposition and argument on the merits of the ap- plication, an order vacating it is final in a sense that another based upon the writ, necessarily falls 2. Smith v. Robinson, 64 Cal. 387. with the writ. Gass v. Williams, 46 3. Moses v. Arnold, 43 Iowa 187 ; Ind. 253. Gross v. Goldsmith, 4 Mackey (D. 0.) 1. Evans v. Virgin, 72 Wis. 423, 39 126. N. W. Rep. 864. 4. Wearne v. France, 3 Wyo. 273; Under a statute prescribing that an 21 Pac. Rep. 703. order be entered that the attached 5. Talbot v. Pierce, 14 B. Men. property be delivered up to the "de- (Ky.) 195. fendant," an order directing that the 6. Steuben County Bank v. Alber- property be delivered to the defend- ger, 83 N. Y. 274, s. c. 61 How. (N. ant's assignee for the benefit of cred- Y.) Pr. 227. itors will not stand. Morawitz v. AVolf, 70 Wis. 515, 36 N. W. Rep. 392. § 355 REVIEW OF ORDER DISSOLVING ATTACHMENT. 659 attachment between the same parties on substantially the same facts will not be allowed whether the application be made to the same court or to another court.' §355. Review of order dissolving attachment— Effect of reversal.— An attachment plaintiff, who desires to have a supe- rior court review proceedings dissolving an attachment, should take steps in that direction immediately or get an order from the court to stay the dissolution for a time sufficient to enable him to perfect his removal, by error or appeal to such superior court, in a manner that will operate as a supersedeas, for while such 'a supersedeas will continue the attachment lien' yet in a state where the officer may properly surrender the property to the defendant upon dissolution without an order of court direct- ing him so to do, the officer can not be held liable for a sur- render of the property in the interval." And the plaintiff's lien upon the attached property will be lost." In states where the order discharging the attachment is con- sidered to be a final order, it may be reviewed on error,' where the affidavits read or the evidence heard on an application to dissolve an attachment has been excepted to and is incorpo- rated in the bill of exceptions.* But since the evidence sub- mitted to the court in proceedings to dissolve the attachment is no part of the record (unless specifically made so by stat- ute),* the dissolution of it can not be taken up on a writ of 1. Schlemmer v. Myerstoin, 19 Where right disputed evidence must How (N Y ) Pr 412 clearly preponderate. Loranger v. 2. Ante, §354, Big M. M. Co., (S. D.) 61 N. W. Eep. 3 Danforth v. Kupert, 11 Iowa 547; 686; Finance Co. of Penn. v. Hursey, Sherrod v. Davis, 17 Ala. 312. (Minn.) 61 N. W. Rep. 672 ; Kirby v. The same principle applies to the Colwell, (N. Y.) 30 N. Y. S. 880. clerk of the court in possession of the 6. Bowring v. Bowring, 4 Utah 185, fund reaUzed on the sale of the at- 7 Pac. Rep. 716. tached property, when he has no no- The affidavits of themselves are no tice of the appeal. Danforth i^. Rupert, part of the record. Brown ^. Ridg- 11 Iowa 547 ^^y' 1^ ^^- ^^- ^^ ' ^^ P"''^^ Putnam, 4 Danforth v. Carter, 4 Iowa 230. 20 Ala. 592; Watson v. Auerbach, 57 5. Adams County Bank v. Morgan, Ala. 353. And the court can not re- 26 Neb 148 41 N W. Rep. 993; Dick- view the proceedings on error al- inson V. Barnes, 3 Gill. (Md.) 485; though the facts may be stated by Dawson V Miller, 20 Tex. 171; Mess- consent in the record. Anon., 1 Binn. ner v. Lewis, 20 Tex. 221. (Pa.)226. Before the plea to the merits is 7. In Iowa by force of the code mo- filed. Schlatter v. Hunt, 1 Mo. 651. tions to dissolve attachments become part of the record and an order dis- QQQ DISSOLUTION OF ATTACHMENT. § 355 certiorari to review the facts.* And for the same reason an ap- peal from the final judgment in the main action will not cause the upper court to review an order dissolving an attachment," unless an appeal is specially provided for by the statute. Many states which long considered an order vacating an at- tachment as a discretionary order and therefore not reviewable have by special statutes provided for an appeal in such cases. These statutory provisions have no proper place in a work of general character like this and are therefore omitted.* When such an appeal is not taken within the time provided therefor, the lien is necessarily lost and the property must be returned.* It seems that it will also be lost by a judgment upon the merits and an order for the return of the property to the defendant, made within the time provided for the appeal from the former dissolution proceedings.^ On review of an order sustaining an attachment which it has been sought to dissolve, and where the grounds of the mo- tion do not appear, and the attachment is good on its face, it will be presumed that the decision of the lower court was well rendered, in the absence of proof to the contrary.® solving an attachment may be assigned peal in New York, the rule is that an for error without incorporating the order sustaining an attachment will be motion into the bill of exceptions, affirmed unless there is an entire ab- Ellsworth V. iMoore, 5 Iowa 486. sence of some fact necessary to author- 1. Holland -y. White, 120 Pa. St. 228, ize the attachment, but the rule does 13 Atl. Rep. 782 ; Brown v. Blanchard, not apply to an appeal from an order 39 Mich. 790; State Bank of Fenton'y. refusing to vacate the attachment. Whittle, 41 Mich. 365; Linn v. Rob- Brewster i). Van Camp, 62 N. Y. Supr. erts, 15 Mich. 443; Hyde ■«. Nelson, 11 603, 8 N. Y. Supp. 588; Bicknell v. Mich. 353. Speir, (Com. PI. N. Y.) 18 N. Y. Supp. 2. Allender v., Fritts, 24 Cal. 447 ; 590. Brown v. Hawkins, 68 N. C. 444. 4. And no order of court for such 3. A statute permitting appeal from return is necessary unless specifically a court commissioner to the court of made so by statute. Ryan v. Heenan, which he is such commissioner, will 76 la. 589, 41 N. W. Rep. 367; McCor- not permit an appeal to that court mick, etc., Co. v. Jacobson, 77 Iowa from the decision of a judge of that 582, 42 N. W. Rep. 499. court. Harvey v. Judge St. Joseph 5. Becker v. Steele, 41 Kan. 173, 21 Circuit Court, 30 N. W. Rep. 188 ; Har- Pac. Rep. 169. vey V. Pealer, 63 Mich. 572. 6. Cobb v. O'Neal, 1 How. (Miss.) Under a statute permitting an ap- 581. § 356 AMENDMENT PENDING DISSOLUTION. 661 A reversal of the order dissolving an attachment of course continues the lien upon the attached property in the same man- ner as though no proceedings had been taken to procure a dis- charge of it.^ § 356. Amendment pending proceedings to dissolve an attachment. — When the attachment proceedings are not void on their face and only show irregularities therein they will not be summarily dismissed on application, but the plaintiff will be permitted to cure the defect by amendment. It is only when they are alleged to show an absolute nullity that an amendment will be denied.' When some act or allegation has been omitted which was necessary to give the court jurisdiction in the attachment, the court is without power to allow an effective amendment.'' And if it does permit an amendment it will not create a lien or affect the rights of bona fide pur- chasers.* Where also the proceedings are adjudged to be in- sufficient on a plea in abatement, the attachment will not be dissolved, in states permitting amendments, until the plaintiff has been given a reasonable opportunity to supply the in- sufficiency.^ When an amendment is sought to be made a new ground for attachment can not be added, but a new statement of the same cause of action, i. e., sl new count, may be included,® and he may state new facts constituting the same ground for attach- ment.' A new party may not be substituted for an original one,* but it is allowable to amend by making one who is a member of the plaintiff firm a party. ^ 1. Jaffray v. H. B. Claflin Co., 119 4. AVhitney v. Brunett, 15 Wis. 61. Mo. 117, 24 S. W. Rep. 761 ; also, ante 5. Claflin v. Hoover, 20 Mo. App. § 324. 314. 2. Hathaway v. Davis, 33 Cal. 161; 6. Mendes v. Freiters, 16 Nev. 388; Branch v. Frank, 81 N.C.180; Graves Ball v. Claflin, 5 Pick. (Mass.) 303. V. Cole, 1 Greene (la.) 405; Chatta- 7. Kibbe v, Wetmore, 31 Hun (N. hoochee Brick Co. v. Sullivan, 86 Ga. Y.) 424. 50, 12 S. E. Rep. 216. 8. Milledgeville Mfg. Co. v. Rives, 3. Buhl V. Ball, 41 Hun (N. Y.) 61 ; 44 Ga. 479 ; ante, §§ 152 and 197. Baltimore Bank v. Teal, 4 Hughes C. 9. Henderson v. Stetter, 31 Kan. 56. Ct. 572. 662 DISSOLUTION OF ATTACHMENT. §356 Amendments are sometimes directed to be made ''under the direction of the court. "^ And it is suggested that a party who desires to amend some part of his pleadings in attachment should prepare his amendment and submit it to the inspection of the court. ^ 1. Tarkington v. Broussard, 51 Tex. ment of Bond/' ante, § 179; "Amend- 550. ment of Writ," anfe, §197; "Amend- 2. McFarland v. Claypool, 128 111. ment of Service," a/t^e, §222; "Amend- 397. Further as to "Amendment of ment of Return," ante, §238. Affidavit," see aiite, §152; "Amend- CHAPTER XVI. LIABILITY OF PLAINTIFF BEYOND THE COVENANTS OF THE BOND, Part I. Liability for Mere Wrongful Attachment— Actual Damages. §365 359 §357. Plaintiff's liability, generally. 358. Plaintiff liable as a wrong-doer in other action than on the 366. bond. Plaintiff liable as a tort-feasor 367. when no ground for attach- ment exists. 368. 360. Plaintiff liable in tort though there be grounds for attach- ment. Liable in what form of action. 369. Liable for trespass of officer, when. 363. Liable for acts of his attorney. 364. Liable jointly with attaching officer. Part 11. Liability for Malicious Damages. 361. 362. Liable jointly with other cred- itors. When the cause of action ac- crues. Pleading in actions for mere wrongful attachment. Proof in actions for the recov- ery of mere actual damages occasioned by wrongful at- tachments. Measure of damages in actions for mere wrongful attach- ments. Attachment — Punitive § 370. Nature of the action, and by what supported. 371. Probable cause— definition of and necessity for. 372. Malice, and how established. 373. Advice of counsel as evidence of probable cause and in ne- gation of malice. Not liable for malicious act of agent. When the action may be be- gun. 376. Pleadings in the action. 377. Damages recoverable. (a) When exemplary dam- ages and when only ac- tual damages. (663) 378. 379. 374. 375. (b) Costs and attorney's fees. (c) Loss of credit or dam- age to business. What may be shown in de- fense of the action. (a) That the attachment pro- ceedings are still pend- ing. (b) That the attachment was not without probable cause. 382. (c) That the attachment was not maliciously sued out. 386. (d) Proof in mitigation o£ damages. 380. 381, 664 . LIABILITY OF PLAINTIFF. §§ 357, 358 Part I. Liability for Mere Wrongful Attachment — Actual Damages. § 357. Plaintiff's liability, generally. — The plaintiff in at- tachment is liable to the attachment defendant for a breach of covenant in the bond for attachment. This is an action on the contract and can be maintained by no one else than the attach- ment defendant. The plaintiff is liable to such action against him alone or against him and his sureties on the bond. The recovery in such action is limited to the amount nominated in the bond. This liability has been particularly indicated herein- before.* The attachment bond is designed to preserve the debtor harmless from a wrongful suing out of the attachment process. But the plaintiff in attachment may incur a further liability than to an action on the bond. He may become a wrong-doer and a trespasser and may render himself liable to an action ex delicto. As a wrong-doer or trespasser, he is not only liable to the attachment defendant, but to any person whose rights are injured by the a,ttachment. And he will not only be liable to the attachment defendant for the actual dam- age to the amount named in the bond, but in whatever amount the actual damage is ascertained to be. Furthermore, he will not only be held liable to repair the actual injury, but where he has sued out the writ with " malice," and without " prob- able cause," he maybe held to punitive or "exemplary" damages also. The attachment plaintiff will be so liable in an action against himself alone ; or, when his wrongful act is participated in by another trespasser or trespassers, he will be liable jointly with him or them. § 358. Plaintiff liable as a wrong-doer to other action than on the bond. — In a few states it is held that the attachment defendant can only recover for the suing out of a wrongful at- tachment by an action on the bond, unless the attachment has 1. See ante, § 182. § 359 PLAINTIFF LIABLE AS A TORT-FEASOR. 665 been maliciously sued out, in which event alone an action on the case can be sustained, and exemplary damages recovered.' In many other states it is not the rule that an action to recover actual damages for suing out a wrongful attachment must be based on the attachment bond. The liability of the sureties is limited to the bond ; but, as against the attachment plaintiff, actual damages may be recovered in the action in which the at- tachment writ was sued out, either by counter-claim or plea in reconvention,^ or an inquiry of damages f or by a separate and independent action.* But in no case can exemplary damages be recovered unless malice or abuse of process is shown.* The attachment plaintiff is, in any event, liable at common law to one whose property has been attached on a writ issuing against another, for that is taking property without due pro- cess of law and is manifestly wrongful. § 359. Plaintiff liable as a tort-feasor when no grounds for attachment exist. — It is maintained that a man ought not to take out legal process to seize the property of another without some knowledge on the subject, and that he is responsible for the consequences if he does so in utter recklessness and igno- rance.® A man is entitled to an attachment only when certain facts exist, and not when there is probable cause to believe they exist. If they do not exist, issuance of a writ of attach- 1. City Nat. Bank v. Jeffries, 73 Ala. 839, 11 So. Rep. Ill ; Ashland County 183; McKellarw. Couch, 34 Ala. 336; Supervisors v. Stahl, 48 "Wis. 593; Frantz v. Hanford, 87 Iowa 469, 54 N. Smith v. Story, 4 Humph. (Tenn.) W. Rep. 474; Tallant v. Burlington 169. Gas Light Co., 36 Iowa 262; Veiths v. 4. Half v. Curtis, 68 Tex. 640, 5 S. Hagge, 8 Iowa 163; Abbott «. Whip- W. Rep. 451; Renkert v. Elliott, 11 pie, 4 Greene (Iowa) 320; Union Mer- Lea (Tenn.) 235; McDaniel v. Gard- cantile Co. v. Chandler, (Iowa) 57 N. ner, 34 La. Ann. 341. W. Rep. 595. 5. McDaniel v. Gardner, 34 La. Ann. 2. Half V. Curtis, 68 Tex. 640, 5 S. 341. As to "Malicious Attachment," W. Rep. 451 ; Walcott v. Hendrick, 6 Bee post, § 370, et seq. Tex. 406; Reiser v. Cushman. 13 Tex. 6. Wills v. Noyes, 12 Pick (Mass.) 290. 324. ^. Betancourt v. Maduel, 69 Miss. 666 LIABILITY OF PLAINTIFF. §360 merit will be wrongful, and the plaintiff who sues it out will be liable in tort, after dissolution, for all damages sustained/ § 360. Plaintiff liable in tort though there be grounds for attachment. — When the levy of an attachment is unlawful, damages may be recovered in an action sounding in tort, even though there may have been grounds for the attachment and although the suing out of the writ be not accompanied by malice.^ Suing out an attachment before a right of action is matured and unnecessarily levying upon property of greater value than that required to satisfy the demand is wrongful.' And so is a false statement of the groujid for attachment.* A levy made under a writ that issued without compliance with the statutory requirements, or under any other writ void for want of jurisdiction, is tortious,® as well as a levy accomplished by forceful acts. In like manner where there is a failure to do i^ 1. McLaughlin v. Davis, 14 Kan. 168; Mitchell v. Mattingly, 1 Mete. (Ky.) 237; Kirksey v. Jones, 7 Ala. €22 ; Seay v. Greenwood, 21 Ala. 491 ; Foster v. Sweeny, 14 Serg. & R. (Pa.) 388; Sanders v. Hughes, 2 Brev. (S. C.) 495; Smith v. Story, 4 Humph. (Tenn.) 169; Hollingsworth v. Atkins, 46 La. Ann. 515, 15 So. Rep. 77 ; Stien- hardtiJ. Leman, 41 La. Ann. 835, 6 So. Rep. 665 ; Harger v. Spofford, 46 Iowa 11 ; Connelly v. Woods, 31 Kan. 359. If a personal representative (an ad- ministrator) wrongfully sue out an at- tachment he will be personally liable for the damages sustained by the de- fendant. Gilmer v. Wier, 8 Ala. 72; Kirksey «. Jones, 7 Ala. 622; Fry v. Estes, 52 Mo. App. 1. 2. McNeil W.Moore, (Tex. Civ. App.) 27 S. W. Rep. 163; Fry u. Estes, 51 Mo. App. 1 ; McDaniel v. Gardner, 34 La. Ann. 341. 3. Watson v. Kennedy, 8 La. Ann. 280. 4. Stiff V. Fisher, 85 Tex. 556, 22 S. W. Rep. 577. In this case an attachment was sued out on the ground that a large sum of money, which was sought to be recov- ered, was obtained by false pretenses, when, in fact, only a small part of such sum was so obtained. Stiff v. Fisher, (Tex. Sup.) 22 S. W. Rep. 577. 5. Kelly v. Archer, 48 Barb. (N. Y.) 68. A creditor who attaches goods of his debtor upon a writ issued by court for the collection of a claim greater than that over which such court has juris- diction, he becomes a trespasser ab initio. In New Jersey a justice's ju- risdiction is limited to demands of one hundred dollars. Therefore the suing out of a writ to collect two hundred dollars was a trespass on the part of the creditor. McFadden v. Whitney, 51 N. J. L. 391, 18 Atl. Rep. 62. In such case the fact that the goods were thereafter returned to the debtor must be considered in mitigation of damages. McFadden v. Whitney, 51 N. J. L. 391, 18 Atl. Rep. 62. § 360 PLAINTIFF LIABLE IN TORT. 667 some act in perfecting the levy which is necessary to the acquirement of jurisdiction, its omission will cause the attach- ment to he unauthorized and void from the beginning, and may cause every act done under it to be a trespass for which damages may be recovered.^ The mere failure to succeed in the prosecution of an attachment per se does not put the plaintiff in the wrong.^ But when an attachment lien is dis- solved, the attachment creditor, by still holding or refusing to surrender the goods, becomes a trespasser ab initio.^ The at- tachment and removal of exempt personal property is of course wrongful; but the levy of an attachment upon the homestead of the defendant can not be the foundation of an action for damages, for since the levy is a nullity, it neither disturbs his possession nor affects his rights.* A fraudulent attachment 1. Ruser v. Union Distilling Co., (Com. PI. N. Y.) 27 N. Y. S. 920, 7 Misc. Rep. 396, affirming 24 N. Y. S. 101. In this case summons was not served on the defendant in the action within the time required by the code. The court wholly lost jurisdiction. Ruser V. Union Distilling Co., (Com. PI. N. Y.) 27 N. Y. S. 920, 7 Misc. Rep. 396, affirming 24 N. Y. S. 101. 2. Smith V. Story, 4 Humph. (Tenn.) 169. 3. Wehle v. Butler, 35 N. Y. Super. Ct. 1. If a partnership stock has been_ at- tached on a claim against an individ- ual partner and the store occupied by a keeper, and the lease thereafter terminates, and the firm is dissolved by the retirement of the individual sued, and the continuing partner takes a new lease to the store he may re- cover against the keeper for a con- tinued occupation of it. Trafford v. Hubbard, 15 R. I. 326, 8 Atl. Rep. 690. 4. Traweek v. Martin-Brown Co., 79 Tex. 460, 14 S. W. Rep. 564. The procurement of a debtor resid- ing in one state, to remove property exempt in that state into another state where it is liable to attachment, and there attaching it, is wrongful and renders the creditor liable in damages. Deyo V. Jennison, 10 Allen (Mass.) 410. However, a resident of Indiana sued out an attachment before a jus- tice of the peace in Illinois against another resident of Indiana who was then temporarily in Illinois with prop- erty, which, by the law of Indiana, was exempt from attachment. The property was taken under the writ. It appeared on the trial that both par- ties lived in the same county in Indi- ana, and that the defendant could easily have been found there by the plaintiff. It also appeared that the debt was a just one and past due. There was nothing in these facts to make the plaintiff guilty of an abuse of process or to indicate that he sought the process in the Illinois court for an unlawful or fraudulent purpose. Mitchell V. Shook, 72 111. 492. 668 LIABILITY OF PLAINTIFF. § 360 may not only render the creditor liable to the defendant, but by causing litigation and' delay may render him liable in damages to a junior attachment creditor to the extent of the latter 's losses from interest accruing on a senior attaching creditor's demand.^ In all such cases the person whose rights are injured may have an action against the attachment plaintiff and need not join the officer with him as defendant.^ Actions for torts being, at common law, local actions, it becomes important to know where the tortious act was com- mitted. In Texas this question is decided by a statute which provides that an action for trespass may be prosecuted within the county in which the cause of action accrued; and under it an action for the wrongful seizure of property under a writ of attachment may be brought in the county wbere the seizure took place, though none of the creditors procuring the attach- ment are residents in such county.' One who has procured the wrongful issuance of a writ can not by assignment avoid his liability for damages thereafter occasioned b}^ wrongful acts done by the assignee under the writ, although not in fact done with the privity of the as- signor.* 1. Zadick v. Schafer, 77 Tex. 501, 14 levy, together with the fact that he S. W. Rep. 153. subsequently sold his interest to 2. Dyett v. Hyman, 129 N. Y. 351, the mortgagee, where the latter sets 29 N. E. Rep. 261. up no claim. This is because the rights Party Injured May Be Estopped from of the parties are fixed at the date of Suing. — The ordinary rules of estoppel the levy. Loomis v. Stuart, (Tex. Civ. obtainincases where the injured party App.) 24 S. W. Rep. 1078. Nor will has consented to, or ratified the acts, the owner's presence at the sale of or has not asserted his rights in apt property wrongfully attached and his time. When, however, one person's assistance (without objection thereto) property is attached as belonging to in making a better sale prejudice him another and is sold by order of court in an action for the damages sustained as perishable, the acceptance of the by the attachment. First Nat. Bank proceeds by the owner will not pre- v. Houts, 85 Tex. '69, 19 S. W. Rep. vent his recovering for the damages 1080. sustained by the attachment. Franke 3. Willis v. McNatt, 75 Tex. 69, 12 V. Ely, 50 Mo. App. 579. Nor will S. W. Rep. 478; Perry v. Stephens, 77 one whose property has been wrong- Tex. 246, 13 S. W. Rep. 984. fully attached be prevented from 4. Hodges v. Biggs, 2 A. K. Mar- suing therefor by the fact that it shall (Ky.) 220. was mortgaged at the time of the § 361 LIABLE IN WHAT FORM OF ACTION. 669 Suing out an attachment before a right of action is matured and unnecessarily levying upon property of greater value than that required to satisfy the demand is wrongful.' And so is a false statement of the ground for attachment.' § 361. Liable in what form of action.-When no force is used in committing the wrong, the proper form of action, at common law, is, - trespass on the case,"^ but where the force is used— as for example in carrying away goods not belonging to the attachment defendant— " trespass m et armis'' may be maintained.* When the goods of one person are taken on a writ running against another, it is taking without process and constitutes a conversion for which - trover " is a concurrent remedy, with '' trespass " at suit by the owner.' It is a well settled principle of law that he who, whether an officer of the law or otherwise, takes the property of another without authoritv, is a wrong-doer, and that the property may be recovered in a proper action.^ When the officer levies an attachment upon the goods of a person other than the attach- ment defendant, the plaintiff in attachment will not be liable to an action of replevin when he did not direct the sheriff to seize the goods ;' but where the attachment plaintiff instructs the officer to make such a levy, he as well as the sheriff is 1. Watson .. Kenedy, 8 La. Ann. 10 So. Rep. 229; Fechheimer .. Nat. 2gQ Exch. Bank, 31 Gratt. (\ a.) 651. 2. Stiff V. Fisher, 85 Tex. 556, 22 S. 5. Meade v. Smith 16 Co^a°^-^346; ^ ^ 577 Rough t-.Womer, 76 Mich. 375 ; Wood- In this case an attachment was sued bury v. Long, 8 Pick. (Mass.) 543. out on the ground that a large sum of And no demand need be made be- money , which was sought to be recov- fore bringing suit. A\ oodbury v. Long, ered, was obtained by false pretenses, 8 Pick. (Mass.) 543. ^, . . when, in fact, only a small part of Trover can not be brought against such sum was so obtained. Stiff v. one who has attached but has not Fisher 85 Tex. 556, 22 S. W. Rep. taken possession. Bailey v. Adams, 577 ' 14 Wend. (N. Y.) 202. 3^ Adams v. Paige, 7 Pick. (Mass.) 6. Caldwell v. Arnold, 8 Minn. 265. 542 7. Richardson «. Reed, 4 Gray 4. Smith V. Kaufman, 94 Ala. 364, (Mass.) 441. 670 LIABILITY OF PLAINTIFF. § 362 liable to an action of replevin ; or to an action of that nature.^ If the record in an action which has been brought to recover attached goods shows that an indemnifying bond was given to the sheriff to protect him in making the levy complained of, it will be presumed that such bond was given at the instance of the attaching creditor, and that he was a party to the trespass ; therefore he will be held liable for the damages that have been occasioned by it.^ § 362. Liable for trespass of officer, when. — When a valid writ is placed in the hands of an officer by an attachment plaintiff, and he makes no specific directions concerning the property to be levied upon, he is not liable for the acts com- mitted or omitted by the officer making the seizure.* When the writ, however, is irregular, unauthorized and void, the officer is not clothed with any authority of law whatever. He is merely the agent of the plaintiff, who becomes liable for all acts of the officer in making a levy.* And although the writ be valid, it only clothes the officer with authority to seize the property of the person against whom it is issued and in a law- ful manner.® Therefore, if the attachment plaintiff directs the sheriff to do illegal acts in making a levy, or to seize exempt property, or to seize the goods of another person than the de- fendant in attachment, the plaintiff, by such direction, be- comes a trespasser, on the principle that all who procure a trespass to be done are themselves trespassers, and on the sup- 1. Marsh v. Backus, 16 Barb. (N. individual interest, such seizure will Y.) 483 ; Allen v. Crary, 10 Wend. (N. be a trespass, and a partner may main- Y.) 349 ; Acker v. Campbell, 23 Wend, tain a joint action with his copartners (N. Y.) 372. and recover damages for injury to the 2. Pool V. Ellison, 9 N. Y. S. 171, 56 attached property or for injury to the Hun (N. Y.)108. business. Haynes v. Knowles, 36 3. Michels v. Stork, 44 Mich. 2 ; But- Mich. 407. lerv. Borders, 6 Blackf. (Ind.) 160; 4. Hall v. Waterbury, 5 Abb. (N. Corner 17. Mackintosh, 48 Md. 374. Y.) n. c. 374; Munn v. Commission If an attachment is brought against Co., 15 Johns. (N. Y.) 44; Dyett v. an individual member of a partner- Hyman, 129 N. Y. 351, 29 N. E. Rep. ship and a levy is made upon specific 261 ; Stetson v. Goldsmith, 30 Ala. chattels owned by the partnership 602, 31 Ala. 649. itself, instead of upon the defendant's 5. Ford v. Dyer, 26 Miss. 243. § 362 LIABLE FOR TRESPASS OF OFFICER, WHEN. 671 position that the officer did not take the goods under the pre- tended authority of the writ, but as the servant of the creditor/ Furthermore, the attachment plaintiff may become liable for the trespass of the attaching officer without having directed the levy or aided therein. If he knowingly consent to the very act which constitutes the wrong, ^ or if he receive the benefits arising from the levy and sale, he is liable for the trespass to the same extent as if the act had been authorized by him.' Defending an interpleader filed by an owner of goods attached on a writ against another, will be evidence of the attaching creditor's assent to the seizure by the officer and will render such creditor liable in trespass.* The writ being void on its face, the fact that the goods levied upon were owned by the person against whom it was intended to proceed by attachment does not excuse the trespass of either the plaintiff or the officer who seized the property.® An action against the attachment plaintiff, for the acts of the attaching officer, is not barred by a judgment against the officer for the same cause, so long as such judgment remains unsatisfied.^ 1. Corner v. Mackintosh, 48 Md. made, they all become alike trespass- 374 ; Lamb v. Day, 8 Vt. 407 ; Perrin ers, liable to like actions, and the in- r. Claflin, 11 Mo. 13 ; Wehle u. Butler, jured person may, at his option in 61 N. Y. 245; Chapin v. Fitzgerald, 5 New York, sue one or all. Wehle w. N. Y. S. 722. Butler, 61 N. Y. 254 ; Vose v. Woods, The giving of an indemnity bond to 26 Hun (N. Y.) 486. the sheriff in order to protect him in And he may recover the entire dam- making the seizure is considered as a age in a suit against one. Dyett v. direction to make the levy and renders Hyman, 129 N. Y. 351, 29 N. E. Eep. the attachment plaintiff liable ior a 261. wrongful levy. McConnell v. Lang- 2. Evarts v. Hyde, 51 Vt. 183. don, 2 Idaho 893, 28 Pac. Rep. 403; 3. Norman v. Horn, 36 Mo. App. Dyett V. Hyman, 129 N. Y. 351, 29 N. 419; Murray v. Binninger, 3 Abbott's E. Rep. 261. Ct. App. Dec. 336. Even though the bond be not signed 4. Perrin ^. Claflin, 11 Mo. 13. See by him, it will be presumed to have further as to Ratification, post, § 364, been given at his request. Pool v. "Liable Jointly with Officer," §365. Elhson, 9 N. Y, S. 171, 56 Hun (N. 5. Patrick v. SoHnger, 9 Daly (N. Y.) 108. Y.)149. Where several creditors procure 6. Knight v. Nelson, 117 Mass. 458. illegal levies of attachments to be ^72 LIABILITY OF PLAINTIFF. §§ 363, 364, 365 § 363. Liable for acts of his attorney. — When a creditor instructs an attorney with a claim for collection by suit, the wrongful suing out of an attachment will render the creditor liable for the actual damages sustained.^ Especially where the affidavit or petition was sworn to by the creditor.^ And when the attorney is present when the levy is made and does not forbid it, it is said, the levy should be treated as having been directed by the attorney with authority from his client.^ § 364. Liable Jointly with attaching officer. — Following the common law rule that wrong-doers are liable in actions for torts either jointly or severally, a creditor who procures an attachment writ and directs a wrongful levy and sale of another's property, becomes not only liable in an action against himself alone,* but the injured party may bring the action against him and the attaching officer jointly.^ The principle of ratification also applies. A ratification of the acts of the officer may be express or implied. If exempt property is attached and sold, the plaintiff buying it with knowledge of its exempt character ratifies the original taking and becomes jointly liable with the sheriff.^ And if an action be brought against the attaching creditor and the sheriff jointly, for a wrongful attachment, and the creditor plead or answer, such plea or answer will be treated as an adoption of the levy of the officer, and will render the creditor jointly liable with the officer.' § 365. Liable jointly with other creditors. — Where various creditors wrongfully seize, under attachment, the property of 1. Kirksey v. Jones, 7 Ala. 622. taching creditor and the sheriff, but 2. Meyer v. Gage, 65 Iowa 606. also the sureties of the sheriff were 3. Jones V. Lamon, 92 Ga. 529, 18 S. properly joined. In Texas, by statute, E. Rep. 423 ; Oestrich v. Gilbert, 9 Hun the officer may ask that the indemni- (16 N. Y.Supr. Ct.) 242. tors be made joint parties defendant. 4. As shown in § 357 above. Stevens v. Wolf, 77 Tex. 215, 14 S. W. 5. Walker v. Wonderlick, 33 Neb. Rep. 29. 504, 50 N. W. Rep. 445; Blakely v. 6. Murphy v. Sherman, 25 Minn. Smith, (Ky.) 26 S. W. Rep. 584 ; B. C. 196. Evans Co. v. Reeves, 6 Tex. Civ. App. 7. Taylor v. Ryan, 15 Neb. 573; see, 254, 26 S. W. Rep. 219. also, as to ratification, ante, § 364. In the latter case, not only the at- § 366 WHEN THE CAUSE OF ACTION ACCRUES. 673 a debtor, or levy upon the property of another than the debtor, they all become liable for the tortious acts in which they are all concerned, and it is at the option of the injured party to sue one or all of them/ And it has been said that in an action against one of such creditors the injured debtor may recover the entire damage, and that it is no defense that the others are also liable for the trespass.^ To render all jointly liable, the trespass must have be^n participated in by them all, for the mere fact that the goods have been wrongfully attached by several different parties will not make them jointly liable for one trespass.* But where several writs of attachment were sued out by different creditors of the same debtor, at the same time and through the same attorney, and the writs came to the sheriff's hands within a few minutes of each other, and all were levied on the next day, and the suits were afterward con- solidated and tried together, it was considered sufficient to war- rant a finding that all the creditors were joint actors and guilty of conversion.* § 366. When the cause of action accrues. — While the rule governing actions brought by the defendant in attachment upon the attachment bond for wrongful attachment is, that such action can not be maintained until the attachment suit has been determined in favor of such attachment defendant,^ and while actions for malicious attachments, being governed 1. Wehle V. Butler, 61 N. Y. 245; however, that although the several at- Vose v. Woods, 26 Hun (N. Y.) 486. taching creditors were not properly 2. Dyett T. Hyman, 129N. Y. 351, 29 joined as trespassers, they were, N. E. Eep. 261 ; affirming 13 N. Y. S. nevertheless, concluded by a judg- 895. ment, which one of them paid, and 3. Brewster v. Gauss, 37 Mo. 518. that they were liable to the sum he had 4. Conrad v. Fisher, 37 Mo. App. realized from his attachment, and not 352. their share of the whole judgment. The rule that the satisfaction of the Brewster v. Gauss, 37 Mo. 518. See, judgment recovered in action against also, Zadik v. Schafer, 77 Tex. 501, 14 one of several trespassers bars an ac- S. W. Rep. 153. tion against any and all the other tres- 5. See ante, ^ 182, "Action on the passers, obtains here ; and so does the Bond." rule of contribution. It has been held, Att. 43 674 LIABILITY OF PLAINTIFF, § 366 by the rules applicable to an ordinary action for malicious prosecution, have been vacated/ yet in many cases it is said to be wholly unnecessary in order to maintain an action for the abuse of process of attachment that there should first be a termination of the attachment suit, because the issues in the two cases are wholly different from, and independent of, each other. ^ Where a writ of attachment is absolutely void there seems to be no necessity that it should be set aside before bringing an action for the injuries done under it, but if the process be merely irregular and voidable only, it would seem that the merits of the writ should be passed upon and the at- tachment disposed of by the court before an action is begun.' At all events, the cause of action is mature when the attach- ment proceedings have been dismissed. For the moment a wrongful attachment is set aside, the plaintiff becomes a tres- passer ab initio, as though no process had been issued.* And the fact that the plaintiff is an actual creditor of the owner of the property attached under a void writ will in no manner tend to justify the trespass.® Upon the question as to whether the attachment defendant, by consenting to,® or procured a dissolution of the attachment, becomes estopped from asserting its wrongful character, it is said in Minnesota that if the defendant voluntarily procure the 1. See post, §370, "Malicious At- 5. Mississippi Mills v. Meyer, 83 tachment." Tex. Sup. 433, 18 S. W. Rep. 748. 2. Rossiter v. Minnesota, etc., Paper As to whether he is only prima /acte Co., 37 Minn. 296, 33 N. W. Rep. 855; a trespasser, or whether the dissolu- Tynberg v. Cohen, 76 Tex. 409, 13 S. tion of the attachment is conclusive of W. Rep. 315; McLaughlin v. Davis, 14 its wrongfulness, see post, § 368. Kan. 168; Zinn v. Rice, 154 Mass. 1, 6. If the first writ of attachment 27 N. E. Rep. 722 ; Cadwell v. Corey, has been rendered invalid because of 91 Mich. 335, 51 N. W. Rep. 888 ; Seay clerical inaccuracy and a second writ V. Greenwood, 21 Ala. 491 ; Shuff v. is sued out, evidence that the creditor Morgan, 9 Martin (La.) 592. Contra, consented to the bringing of the first Sloan V. McCracken, 7 Lea (Tenn.) attachment will warrant the question 626; Kramer v. Thompson-Houston to be submitted to the jury whether he Electric Light Co., 95 N. C. 277 ; Jack- also consented to the suing out of the son V. Colcord, 114 Mass. 60. second. Baines v. Ullman, 71 Tex. 3. Re Bradner, 87 N. Y. 171. 529,9 S. W. Rep. 543. 4. Lyon v. Yates, 52 Barb. 358; Freeman v. Grist, 1 44. Dev. & B. (N. C.) 217. 2. Henderson v. Bliss, 8 Ind. 100; 6. Pollack v. Slack, 92 111. 221; Me- Schmidt??. Colley, 29 Ind. 120; Ryan chanics' Sav. Inst. v. Givens, 82 111. V. Burkam, 42 Ind. 507; Speyer v. 157; Daniels v. Lewis, 7 Col. 430; Ihmels, 21 Cal. 280. Maloney v. Grimes, 1 Col. T. 111. 3. Plunkett v. Moore, 4 Harr. (Del.) 7. Smith v. Clinton Bridge Co., 13 379. 111. App. 572. 4. Post, § 426. 8. And if such judgment creditor 5. Post V. Carpenter, 3 Fla. 1 ; Smith levied his execution after the first V. Bowden, 23 Fla. 150, 1 So. Rep. (his) attachment and before the levy 314; Porter v. Earthman, 4 Yerger of the second attachment, and the §404 GENERAL RULES, ETC. 745 § 404. General rules — First valid levy takes prior lien. — The general rule regarding the priority of attachments, how- ever, based upon the principle tliat the lien takes effect at the time of the levy and not at the time of the return or judgment/ is, that an attachment creates a lien which nothing subsequent can destroy but the dissolution of the attachment upon the con- ditions prescribed by law,'' and that the attachment first levied or the summons of garnishment first served shall be first satis- fied out of the proceeds of the things or credits so actually at- tached.^ Their precedence is first determined primarily by the time of actual service, as shown by the returns of the officers on the writs,* and without reference to the time of judgment, executions or sales. ^ This is true where the levy is good and? second attachment is prosecuted to judgment at a subsequent term, the lien of the execution is superior to that of the second attachment and judgment. Paltzer v. National Bank, 145 111. 177, 34 N. E. Rep. 34. Where the attachment fails to hold the property, or where judgment is not obtained at the same term of court, the statute in regard to pro rata division of proceeds does not ap- ply. Kennedy v. Wikoff, 21 111. App. 277. Nor is, in Illinois, a creditor who recovers in a garnishment proceeding required to share the proceeds pro rata, such proceedings not being in- cluded within the particular statute. Kennedy v. Wikoff, 21 111. App. 277. 1. Morehead v. Western North Caro- lina R. R. Co., 96 N. C. 362; Rowan V. Lamb, 4 G. Greene (Iowa) 468. 2. Goore v. McDaniel, 1 M'Cord (S. C.) 480; ante, §326. 3. Carter v. Champion, 8 Conn. 549 ; Beers v. Place, 36 Conn. 578; Patrick V. Montader, 13 Cal. 434; Willis v. Parsons, 13 Ga. 335; Sewell v. Sav- age, 1 B. Mon. (Ky.) 260; Kennon v. Fickhn, 6 B. Mon. (Ky.) 414; Clay v. Scott, 7 B- Mon. (Ky.) 554; Wallace V. Forrest, 2 Har. & M. (Md.) 261; Talbot t\ Harding, 10 Mo. 350; Yale V. Matthews, 12 Abb. (N. Y.) Pr. 379; 20 How. Pr. (N. Y.) 430; Calla- han V. Hallowell, 2 Bay (S. C.) 8; Farmers' Bank v. Day, 6 Gratt. (Va.) 360; Roberts v. Dunn, 71 111. 46; Laird v. Dickerson, 40 Iowa 665 ; Nut- ter V. Connet, 3 B. Mon. (Ky.) 199; Harmon v. Juge, 6 La. Ann. 768; Cole V. Butler, 43 Me. 401 ; Bruce v. Holden, 21 Pick. (Mass.) 187; Burl- ingame v. Bell, 16 Mass. 318; Piatt v. Brown, 16 Pick. (Mass.) 553; Rock- wood V. Varnum, 17 Pick. (Mass.) 289 ; Liebman v. Ashbacker, 36 Ohio St. 94; Crowninshield v. Strobel, 2 Brev. (S. C.) 80; English v. King, 10 Heisk. (Tenn.)666; Rudd v. Paine, 2 Cranch C. Ct. 9; Grigsby v. Love, 2 Cranch C. Ct. 413 ; McCobb v. Tyler, 2 Cranch C. Ct. 199 ; Johnson v. Grif- fith, 2 Cranch C. Ct. 199. But com- pare Violette V. Tyler, 2 Cranch C. Ct. 200; McLaughlin -y. Swann, 18 How, 217; AVooldridge v. Mississippi VaL Bank, 36 Fed. Rep. 97. 4. Gates v. Bushnell, 9 Conn. 530. 5. DeWolf V. Murphy, 11 R. I. 630. Since priority depends upon prior attachment and not upon prior judg- 746 PRIORITIES. §404 the return sufficient, although the latter be irregular because of lacking the signature of the officer.* And although the judgment entry ordering sale omitted to specifically describe the property, such omission does not affect the lien.^ Where there have been several attachments, and one of them is dissolved, a junior attachment will take priority.* A like effect will be caused by the first attaching creditor waiving his lien. A waiver of lien operates as a dissolution of attachment, and the lien of the next junior attaching creditor will take ef- fect as if the first attachment had not been made.* Furthermore, when the execution issuing on the judgment ment, other creditors can not com- 3. Bachelder v. Perley, 53 Me. 414; plain because the debtor himself ad- Haebler v. Myers, 11 N. Y. S. 7, 312, vances the hearing of the case. Raw- lins V. Pratt, 45 La. Ann. 58, 12 So. Rep. 197 ; Mutual Nat. Bank v. Pratt, 45 La. Ann. 58, 12 So. Rep. 197; Smith V. Pratt, 45 La. Ann. 58, 12 So. Rep. 197 ; Chaffe v. Pratt, 45 La. Ann. 58, 12 So. Rep. 197. When is an attachment suit begun'} — It was said in a case where a suit was begun in the name of the payees of notes, without their knowledge, by attorneys acting for their sureties. s. c. 58 Hun (N. Y.) 179. If the first attachment is invalid, the filing of a lis pendens in such suit will create no priority over subse- quent valid attachments. Meyer v. Ruff, (Ky.) 16 S. W. Rep. 84; Meyer V. Krauth, (Ky.) 16 S. W. Rep. 84; Meyer V. Layers, (Ky.) 16 S. W. Rep. 84; Meyer v. Feuchtwanger, (Ky.) 16 S. Rep. 84. If, however, the first should be re- vived, or its dissolution reversed on that other attacliing creditors, coming appeal, any proceeds paid to the see- in before the payees ratified the first attachment, should take precedence ; because the first attachment was not the suit of the payees until they as- sented to it. Caruth-Byrnes Hard- ware Co. V. Deere, 53 Ark. 140, 13 S. W. Rep. 517. 1. Lea^ V. Maxwell, 1 Head (Tenn.) 365. 2. Gerdes v. Sears, 13 Ore. 358. The levy must be actual and not a mere pretense. Therefore, where one officer unlocked a carriage house for the purpose of attaching a carriage, and another officer first laid hands upon the carriage, the latter was held to have obtained a prior lien. Hollis- ter V. Goodale, 8 Conn. 332; ante, §207. ond attaching creditor in the interval may be recovered from him in an ac- tion for money had and received. Caperton v. M'Corkle, 5 Gratt. (Va.) 177. A debtor's property was attached. He claimed it as exempt. The ofiicer then attached it on a second creditor's writ against which there was no ex- emption. The officer did not part with the possession first taken. The debtor's claim of exemption was then waived, and it was held that the lien of the first attachment thereby be- came superior to that of the second. Wallace v. Swan, 6 Dak. 220, 50 N. W. Rep. 624. 4. Gilbert v. Gilbert, 33 Mo. App. 259. I 405 EXCEPTIONS TO THE RULE. 747 obtained in the first attachment is satisfied out of the sale of the goods without exhausting the proceeds, the second attach- ment then becomes a lien on the residue.' The lien of the first attachment can not be greater than the indebtedness stated in the affidavit and writ.' When the property is sold by the sheriff, the proceeds take the place of the property in the at- tachment suit, and though it is sold to satisfy an attachment which is a lien for less than its value, and a second attach- ment exists, the purchaser of it takes good title. He may pay the full price in money to the officer whose duty it is to satisfy the execution and hold the balance of the money subject to the lien of the second attachment." The rule applies whether the writs have all been issued from a state court or whether some have been issued from a state court and some from a United States court. :ives priority. — Since the title to chattels does not pass upon a contract of sale until the chattels are delivered either by an actual delivery of possession or by a symbolic delivery, as the delivery of a bill of lading, etc., an attachment at suit of the vendor's creditors which is levied prior to such a delivery will create alien which will take priority over the rights of the vendee. This rule is likewise dependent upon the lack of actual notice on the part of the attaching creditor.' But it is said that where the buyer uses the highest diligence to obtain possession, his rights are thereby made paramount to those of an attaching creditor of the vendor on a writ issuing after the bill of sale and levied before the buyer could obtain possession.^ When a vendee buys personal property on a conditional sale, that is, upon condition that the title will not pass to him until a certain time or until he has paid a certain price in install- ments or otherwise, or on any other condition precedent, a sale and delivery of the property to the vendee does not vest the legal title in him until he performs the named condition, or the seller waives it; and the rights retained therein by the ven- dor will take priority over any that may be acquired by attach- ment at suit of a creditor of the vendee.' A vendee's creditor can not attach such property, although he be willing to con- tinue to fulfill the terms of the contract. He has no right to attach until the title is complete in the vendee.* Where, how- ever, the title is vested in the vendee and the seller has only a vendor's lien thereon, the property may be attached at suit of the vendee's creditor by payment or tender of payment within a proper time of the amount claimed.® therein, it was lield that the corporate 167 ; Hatch v. Bayley, 12 Cash. (Mass.) stock of tlie corporation was not at- 27. tachable at suit of its creditors until a 3. Buckmaster v. Smith, 22 Vt. 203 ; Hen of the state was extinguished by Hale v. Huntley, 21 Vt. 147 ; McFar- payment for the stock. States. La- land v. Farmer, 42 N. H. 386; compare grange, etc., Railroad Co., 4 Humph. Chase v. Ingalls, 122 Mass. 381. (Tenn.) 488. 4. Hale r. Huntley, 21 Vt. 147. 1. Bancker v. Brady, 26 La. Ann. 5. Fales v. Roberts, 38 Vt. 503. 749; Seymour v. O'Keefe. 44 Conn. Ante, ^37. 128. But wliere he has no perfected lien, 2. Keller v. Paine, 34 Hun (N. Y.) although the price be unpaid, an at- 772 PRIORITIES. § 421 The right to rescind for fraud possessed by the vendor may or may not affect the attachment of a fraudulent vendee's creditor. Such a creditor whose debt existed at the time of the fraudu- lent purchase can not, by mere attachment of the goods, pre- vent the vendor from rescinding the contract, for he obtains no better right in the goods than that of his debtor; and a sub- sequent creditor who may be supposed to have given credit upon the apparent ownership of the vendee may hold the goods if he attached them before the contract is rescinded by the vendor.^ Goods in transitu, although considered to be in the hands of the agent of the vendee, are yet subject to the vendor's right of stoppage in transitu, and such right is therefore superior to any that may be acquired by attachment at suit of a vendee's creditor.^ Goods that are sold and thereafter delivered to a carrier con- signed to the vendee can not be attached in transitu by the vendee's creditor without paying or making a tender of pay- ment of the carrier's charges, for he has a paramount lien therefor.^ § 421. When subsequent purchaser has prior title. — When one purchases property without actual or constructive notice of a prior attachment, and for a good consideration, he is a bona ■fide purchaser and his title will be good as against the world.* But if he have any notice whatever of the prior attachment he wdll take in subordination to it. In Florida, the levy of the attachment is itself a constructive notice from its date to all tachment at suit of a creditor of the though the person receiving tliem has vendee will take priority. Empire notice of the attempted levy. Cris- . State Type Founding Co. v. Grant, 44 man v. Dorsey, 12 Col. 567. Ante, Hun (N. Y.) 434. §46. When attachment no bar to delivery. 1. Bradley i;. Obear, 10 N. H. 477. — Where chattels are attached or at- 2. Hause v. Judson, 4 Dana (Ky.) 7. tempted to be attached and are not 3. Wolfe v. Crawford, 54 Miss. 514; yet in custodi lecjis by being taken into ante, § 40. the possession of the officer, such at- 4. Young v. Kellar, 94 Mo. 581 ; tachment is no bar to a delivery in Canda v. Powers, 38 N. J. Eq. 412; pursuance of a previous contract, even Rothermel v. Marr, 98 Pa. St. 285. § 422 WHEN TRUSTEE HAS PRIOR TITLE. 773 subsequent purchasers/ And this is true in all states where chattels are attached and taken into the actual possession of the officer.' Any actual notice possessed by the purchaser will subordinate him to the lien of the prior attachment.' But (I such prior attacliment must be a valid one, or the purchaser's j title will not be affected thereby.* § 422. When trustee has prior title. — A trustee who has ob- tained title in good faith, and not in fraud of creditors, takes priority over subsequent attachments. Where preferences are permitted, a creditor may take a conveyance of land in trust for himself and another creditor, in consideration of his in- debtedness, and his deed will take priority over a subsequent attachment at suit of another creditor.^ The trustee himself has legal title susceptible of attachment at suit of his creditors, although the land was conveyed to him to be by him conveyed to another, if the attachment be levied upon it while the title is in him.® 1. Though the property at the time of the levy be in the possession of a third person not a party to the suit, under a fraudulent conveyance by the at- tachment debtor. McClellan v. Solo- mon, 23 Fla. 437, 2 So. Rep. 825. And an ancillary attachment upon land gives the same notice to subse- quent purchasers as though it were levied at the inception of the suit. Budd V. Long, 13 Fla. 288. 2. Ante, §§ 200 and 244. 3. Baldwin v. Leftwich, 12 Ala. 838. Where the statute requires the keeping of "a book in which an index of all liens in district or circuit courts shall be kept" an nnindexed entry in the "incumbrance book," showing an attachment on land described, is no- tice to subsequent purchasers. Blod- gett V. Huiscamp, (54 Iowa 548. But the exi tence of a record of an attachment can not be proved by merely balancing probabilities. It must be shown clearly and satisfact- ory or the bona fide purchaser will be without notice. Worcester Nat. Bank V. Cheeney, 87 111. 602. 4. Saco V. Hopkinton, 29 Me. 268. Purchaser's defense to prior attach- ment. — A purchaser after attachment, and before levy on execution and sale, may show any matters affecting the jurisdiction of the court in the attach- ment in like manner that the same may be done by other attaching creditors. Ante, §404, et seq. He may show as against one claiming title to real estate by virtue of an at- tachment and a subsequent levy of execution, that an amendment was made to the declaration which added a new cause of action ; and he may show this by parol evidence. Free- man V. Creech, 112 Mass. 180; ante, §406. 5. Bean v. Patterson, 4 McCrary Cir. Ct. 179. 6. Nelson v. Henry, 2 Mackey (D. C.) 259. 774 PRIORITIES. §423 § 423. When assignee has prior title.— An assignee of a debtor, who takes title in good faith, will hold priority over a subsequent attachment by another creditor in a state where preferences are allowed, although the assignment is made in another state. ^ But in order that the assignment may take priority over the attachment the assignee must have actual and notorious possession, or the attaching creditor must have actual notice or constructive notice by a record of the assignment.' An attachment, however, will take priority over all subse- quent assignments." A creditor attaching property in the hands I.Robinson v. Rapelye, 2 Stew. (Ala.) 86 ; Brown v. Millington, 25 Vt. 242 ; Tootle v. Cahn & Co., (Miner), 52 Kan. 73, 34 Pac. Rep. 401 ; Franklin Firelns. Co. v. West, 8 Watts & S. (Pa. ) 350; Geddes v. Geddes, 7 Pa. Co. Ct. Rep. 660 ; Wells v. Biscoe, 3 Gill.(Md.) 406. Assignee of negotiable instrument. — A draft, drawn by the creditor, upon a debtor who is afterwards made a garnishee, is an assignment of the funds in the hands of the debtor, and will have priority over the garnishee plaintiff's lien. Miller v. Hubbard, 4 Cranch C. Ct. 451. On the same principle an attachment sued out against the payee of a bill of exchange, and levied upon the funds, will not bind them as against the in- dorsee of the bill, when the latter sues in the name of the payee to re- cover on such bill. Corser v. Craig, 1 Wash. (C. C.) 424. An attachment levied on a debtor's land after an assignment of all his estate, for the benefit of his creditors, creates no lien as against creditors. Nethercutt v. Herron, (Ky.), 8 S. W. Rep. 13. A creditor who is not willing to ac- cept his proportion, when an assign- ment is made for the benefit of credi- tors under an insolvency act, but levies an attachment upon the property in the hands of the assignee, will only get a lien upon the surplus of the prop- erty if there be any. Bigelow iJ.Pritch- ard, 21 Pick. (Mass.) 169. And such insolvency proceeding may be invalid as against a foreign attachment plaint- iff. Hurd V. Silsby, 10 N. H. 108. But one who accepts a share ten- dered him on distribution in insol- vency can not go behind his accept- ance. Blake v. Baldwin, 54 Conn. 5, 2. Clark v. Connecticut Peat Co., 35 Conn. 303; Gibson v. Stevens, 3 Mc- Lean 551 ; Yates v. Dodge, 23 111. App. 338, 123 111. 50, 13 N. E. Rep. 847; Wells V. Lamb, 18 Neb. 352. 3. Conway v. Butcher, 8 Phila. 272; In re Nelson, 9 Ben. 238; Wilson v. Forsyth, 24 Barb. (N. Y.) 105. The debtor can not avoid an attach- ment lien by a subsequent assignment for the benefit of creditors. Conway V. Butcher, 8 Phila. (Pa.) 272. Or by subsequent insolvency proceedings. In re Nelson, 9 Ben. 238; Wilson v. Forsyth, 24 Barb. (N. Y.) 105. (Ex- cept in a state where preferences are not permitted and the assignment is made within a certain time after the attachment.) Where there has been an attachment of land, and the same has been partly satisfied by a sale, an assignment will not prevent the officer from thereafter selling so much of the real estate at- § 424 WHEN RECEIVER HAS PRIORITY. 775 of an assignee, takes preference over another creditor who be- comes a party to the assignment after the attachment ;^ and takes priority over one taking title from an assignee between the time the sheriff's demand upon such assignee is refused and the time when the court orders a delivery of the property by the assignee to the attaching officer.^ When, however, per- sonal property is attached the officer must have the property in his keeping, or in some way make it manifest to third parties, or an assignee of such chattel will take good title thereto on the principle that he is a purchaser without notice.' A fraudulent assignment, when so determined by judicial investigation, will, of course, be ineffective as against a credi- tor attaching subsequent to the assignment. But if a bona fide purchaser, for value and without notice, take title under the fraudulent assignee and before the attachment, his rights will have priority over those of the subsequent attaching creditor of the assignor.* § 424. When receiver has priority. — Receivers appointed by a court in cases of insolvency are governed by the same general rules that control in other cases where attachments conflict tached as is necessary to satisfy the be done without showing that it issued balance. "Wilson ?;. Forsyth, 24 Barb- on a just demand. Ante, ^399. (N. Y.) 105. 2. Anthony v. Wood, 29 Hun (N. 1. Ward V. Lamson, 6 Pick. (Mass.) Y.) 239. 358. Effect of waiver of exemption. — Where Proof. — Where creditors attach prior a debtor has made an assignment and to an assignment, and thereafter con- reserved his legal exemption, and sent that the sheriff deliver possession when an attachment is subsequently to the assignee subject to their rights, brought, then waives his exemptions, they must thereafter, in order to main- the property may be applied in satis- tain their claim to a prior lien, prove faction of the attachment lien be- that their attachments were issued cause the assignee has no interest upon valid debts. Plume-Atwood therein. Bankof Commerces. Payne, Mfg. Co. V. Caldwell, 136 111. 163, 26 86 Ky. 446, 8 S. W. Rep. 856. N. E. Rep. 599. 3. Wooster v. Bullock, 52 Vt. 48; This, on the principle that as be- Littleton v. Wyman, 69 Iowa 248. tween the attaching officer or creditor 4. Dixon v. Hill, 5 Mich. 404; Men- and a stranger to the attacliment there ken v. Gumbel, 57 Miss. 756 ; Peck v. can be no justification without show- Whiting, 21 Conn. 206. ing a valid attachment, whicli can not Y76 PRIORITIES. § -1-- t with the private individual's claim. A receiver appointed sub- sequent to an attachment can not (in the absence of a special statute causing the insolvency proceedings to relate back to an anterior time) take priority over such an attaching creditor, where the proceedings for the appointment of the receiver were not instituted at the time of the attachment.^ Furthermore, where the attaching creditor maintains his lien by the actual possession of the sheriff, a receiver appointed in a suit in which such attaching creditor is not a party has no right to the possession of the attached property, but the sheriff may keep it and dispose of it under his writ.' Property which has been seized under attachment is in custody of law as against third persons, therefore it can not be transferred to a receiver appointed in a proceeding at suit of other creditors." Where, however, a bill or petition is filed asking for a re- ceiver and praying for an injunction to restrain the disposition of property, a creditor who makes an attachment subsequent thereto, though prior to the entry of a decree or order therein, acquires no valid lien and can not prevent the receiver from selling the property.* In matters of insolvency the courts take a broad view of the subject for the benefit of all the general creditors, and are not disposed to permit an attaching creditor by mere race of diligence, while the proceedings are in pro- 1. Page V. Supreme Lodge Knights Rep. 430; State v. Superior Court of and Ladies of Protection, (Mass.) 37 Chehalis County, 8 Wash. 210, 35 Pac. N.E. Rep. 369, s.c.Kittredgi\ Osgood, Rep. 1087, s. c. 8 Wash. 659, 35 Pac. 161 Mass. 384 ; Minchin v. Second Nat. Rep. 1092 ; State v. Graham, 9 Wash. Bank, 36 N. J. Eq. 436; Harrison v. 528, 36 Pac. Rep. 1085. Harwood, 31 Tex. 650. 3. DolHns v. Lindsey, 89 Ala. 217, Unless they be instituted on the 7 So. Rep. 234. same day in a state in which the law Exception in cases of insolvency.— will not consider a fraction of a day The policy of the law being that the in such cases. Cerf ??. Oaks, 59Cal. 132. United States is a preferred creditor Attaching creditor can not share in re- in the cases of insolvency, the pre- ceiver^s distribution of funds unless ceding attachment will have no pri- they release their attachments or ority over a claim interposed in behalf account for the property in their pos- of the United States Government, session. Garham v. Mutual Aid Soc, WiUing v. Bleeker, 2 Serg. & R. (Pa.) 161 Mass. 357, 37 N. E. Rep. 447. 221. 2. State r. Superior Court of Sno- 4. Atlas Bank r. Nahant Bank, 23 homish County, 7 Wash. 77, 34 Pac. Pick. (Mass.)480. § 425 WHEN ATTACHMENT IS PRIOR TO DEED, ETC. 777 gress, to obtain priority over other creditors.' Tliey are dis- posed to hold tliat the pendency of insolvency proceedings is such notice to third parties as will prevent a subsequent attach- ing creditor from acquiring a lien on the principles herein- before laid down.^ After the appointment of a receiver an individual creditor can certainly get no lien under an. attachment.' § 425. When attachment is prior to deed of legatee or distributee. — While specific articles of property still under the control of an executor or administrator of an estate not yet fully administered can not be attached at suit of a creditor of a residuary legatee or devisee, because such property is in custody of law,^ yet a distributee's share when a charge on the estate or when ascertained ready for distribution may be at- tached in the hands of the executor or administrator at suit of the devisee's creditor.® And in such case the attaching creditor would have priority over a purchaser of such interest, although the distributee had theretofore agreed by parol with the ad- ministrator that the latter should sell his interest in the property.® 1. Fisher v. Vose, 3 Rob. (La.) 457. Moors v. Albro, 129 Mass. 9; Hirsh- 2. Ante, §§ 404 and 408. iser v. Tinsley, 9 Mo. App. 339 ; Vree- A bankrupt act once in force was land v. Bruen, 21 N. J. L. 214; but intended to take priority over attacli- would have no effect upon pending ment liens acquired within fou-r attachments begun more than four months next preceding the commence- months prior thereto. Gillett v. Mo- ment of the bankruptcy proceedings. Carthy, 23 Kan. 668. The effect of such a statute would be 3. Pei-ego v. Bonesteel, 5 Biss. (U. to dismiss all attachments begun with- S.) 66; Matter of Rowell, 21 Vt. 620. in four months immediately preced- 4. Thornhill v. Christmas, 11 Rob. ing the action in bankruptcy. Hamil- (La.) 201. ton V. Bryant, 114 Mass. 543; Taylor 5. Ante, § 62. V. Whitefleld, etc., Co., 58 N. H. 369; 6. Allison v. Graham, 67 Iowa 68. CHAPTER XIX. INT ERVENTION. Interplea.^ §426. Nature of the proceeding. §432. 427. Who may intervene. 428. When claimant may inter- vene. 433. 429. What issues may be deter- 434. mined by intervention. 435. 430. Where the issue on interven- tion to be tried. 436. 431. When issue on intervention to 437. be tried. 488. 439. 440. How to intervene. (a) Notice to officer or at- taching creditor. (b) Petition — Affidavit. (c) Bond. Parties defendant. Answer or replication to inter- venor. Proof. Instructions to the jury. Findings — Verdict. Judgment— Damages— Costs. § 426. Nature of the proceeding. — It is an elementary prin- ciple of law that a creditor who brings a suit against his debtor can not b}^ such proceeding interfere with or permanently af- fect any of the rights of third persons not made parties to his suit. And that if such effect be apparently produced, the pur- chaser may, by some proper collateral proceeding in a court of competent jurisdiction, have redress for the wrong he has sus- tained by having the prior proceeding set aside or otherwise corrected; but for the purpose of avoiding unnecessary litiga- tion, and the expense to such third person which he would thereby be compelled to pay out in the first instance, many 1. "Intervention" technically em- braces the interposition of rights to property seized on attachment by a stranger to the attachment suit. An "interplea'' is permitted to be filed in various proceedings in both law and equity and the term is sometimes used (7 in attachment suits. In such cases it is synonymous to intervention, but it is more particularly used in garnish- ment proceedings where no rights of property can arise, but only the rights to claim the attached fund or a part thereof. "Garnishment, "posf, Vol. II. 78) § 426 NATURE OF THE PROCEEDING. 779 courts permit a third person claiming a right of property to in- tervene in an attachment suit/ and have his rights determined by the court having jurisdiction of the property, and before a final determination of the attachment proceedings. This is allowed in Maryland and New Hampshire as a mere matter of good practice.^ And in many other states where no such "practice" was theretofore recognized, an intervention is per- mitted by special statutes. When, however, intervention is permitted by statute, no person can intervene except as per- mitted by such statute. There are still other states which per- mit no intervention in the attachment suit, but leave the in- jured third person to resort to an independent proceeding.^ Intervention, when permitted or prescribed, is a privilege and not a necessity. There is no rule of law which compels '. an owner of attached property to intervene on notice of suit, / and defend pro interesse suo on pain of forfeiting his rights of property or of action.* Therefore, one who intervenes is not estopped from a suit to replevy the property, nor from any other common law action. The remedy by intervention is ad- ditional and not conclusive.^ Furthermore, the fact that one is prosecuting an independent suit does not prevent him from intervening in the attachment proceeding when he is otherwise permitted so to do.^ But as a matter of law he can have but one satisfaction of the injury sustained. 1. As to the right to "interplead" permitted in cases in wliich personal in a garnishment proceeding, pos- property is attached — Gordon v. Mc- 'lessed by one claiming an interest in Curdy, 26 Mo. 304 — while in others it (he fund, see post, Vol. II. is said to apply as well to real as to 2. Howard v. Oppenheimer, 25 Md. personal property. Juilliard v. May, 350; Blaisdell v. Ladd, 14 N. H. 129. 130 111. 87, 22 N. E. Rep. 477. 3. Pennsylvania Steel Co. v. New 4. Megee v. Beirne, 39 Pa. St. 50. Jersey Southern R. R. Co., 4 Houst. 5. Sheedy v. Second Nat. Bank, 62 (Del.) 572; Davis v. Warfield, 38 Ind. Mo. 17; Lowry v. Kinsey, 26 111. 461; Risher v. Gilpin, 29 Ind. 53; App. 309; Carson v. White, 6 Gill, Gordon v. McCurdy, 26 Mo. 304 ; (Md.) 17 ; Sperry v. Ethridge, 70 Iowa Crow V. Stevens, 44 Mo. App. 137; 27. Boylen v. Young, 6 Allen (Mass.) 6. Hall v. Richardson, 16 Md. 396. 582 ; Hallam v. Jones, Gilmer, 21 Va. But in Alabama one having a con- 142. flicting attachment suit pending can An intervention is sometimes only not intervene. Post, § 427. 780 INTEEVENTION. § 427 The intervention raises an issue between the third person claiming a right in the property and the attachment plaintiff, which issue depends upon the jurisdiction of the court arising by virtue of the writ of attachment; therefore, where there is no valid attachment, as in a case where there is no valid serv- ice of a writ, there is no suit between the attachment plaintiff and the intervenor.' When an attachment suit is pending at law an intervention therein is a legal proceeding, and will not be changed to an equitable action simply because the pleading contains a "prayer" for relief.^ Where, however, the statute provides for a bill in equity at the instance of an interpleader in foreign attachment, it is said that a court of equity will take entire jurisdiction of the matter pending at law and supersede it so that there will be no necessity of an injunction upon the suit at law.* But this is foreign to what is generally understood to be an intervention, which is not an independent action, but an interlocutory proceeding in the original attachment suit. The intervention is, nevertheless, so much a distinct action that it must present matters sufficient to make an issue upon and to support a verdict and judgment.* § 427. Who may intervene. — Intervention is essentially the act of interposing a claim to try the right of 'property. In gen- eral, any person other than the defendant, having either a general or special property in the goods attached, may inter- vene in the attachment suit to have his rights adjudicated by 1. Gibson v. Wilson, 5 Ark. 422. the beginning of a void suit, a peti- In Indiana, however, a third person tion of intervention is proper at the who files a claim in the attachment instance of judgment creditors of the suit acquires a lien which is not dis- defendant who desire to maintain charged by the dismissal of the orig- that the attachment is a fraud upon inal attachment proceedings on ac- their rights. Davis v. Eppinger, 18 count of defective papers. Fee v. Cal. 378. Moore, 74 Ind. 319. See further, Tay- 2. Markley v. Keeney, 87 Iowa 398, lor V. Elliott, 51 Ind. 375; Lexington 54 N. W. Rep. 251. & Big Sandy R. R. Co. v. Ford Plate 3. Darrow v. Adams Express Co., 41 Glass Co., 84 Ind. 516. Conn. 525. It is said in California, however, 4. Neal v. Newland, 4 Ark. 459. that where an attachment is issued at §427 WHO MAY INTERVENE. 781 the court in which the same is pending.' But again it may be necessary for the intervenor to show a prima facie case of a bona fide title as owner, ^ pledgee or assignee. And in such case no other person can intervene, although the property may have been taken from his possession on the attachment levy.' One, other than the defendant, who claims to be the owner or purchaser in good faith and for a valuable consideration, is a proper person to intervene.* And one who claims to have an undivided interest may also intervene when he is not a party to the writ.^ But he can not do so when he is a party to the proceeding as a partner of the debtor or otherwise.® In Texas, one who has a seller's lien on the goods sold may inter- vene and enforce the same in an attachment suit, but he is not obliged so to do.' A consignor claiming the goods by consign- ' 1. Mitchell V. Hinman, 8 Wend. (N. (D. C.) 221; Heaverin v. Robinaon, (Ky.) 21 S. W. Rep. 876; Ft. Worth Pub. Co. V. Hitson, 80 Tex. 216, 14 S. W. Rep. 843. A bill of sale, made on the consid- eration that a return bill of sale should be made after certain acts were performed, does not pass title, and therefore the holder thereof can Ct. Rep. 378, 2 Ohio not intervene to try a right of prop- erty. Dallas Nat. Bank v. Davis, 78 Y.) 667; Dryer v. Abercrombie, 57 Ala. 497; Dean v. Stephenson, 61 Miss. 175; Dreyfus v. Mayer, 69 Miss. 282, 12 So. Rep. 267; New Orleans, etc., Co. V. Beard, 16 La. Ann. 345; Golsan v. Powell, 32 La. Ann. 521: JuilUard v. May, 130 111. 87, 22 N. E. Rep. 477. See Gates v. Peuna. L. & L. Co., 9 Ohio Cir Dec. 312. 2. Pierce v. Kingsmill, 25 Barb. (N. Tex. 362, 14 S. W. Rep. 706. Y.) 631 ; Seisel v. Folmar, (xila.) 15 So. Rep. 850. 3. Hardy v. Lemons, 36 La. Ann. 107 ; Abernathy v. Whitehead, 69 Mo. 28. In Vermont, no one but the owner of the property or some person repre- senting him can question the attach- ment and sale. Sanborn v. Kittredge, 20 Vt. 632. When land is attached the title is directly involved. Therefore a wife, who claims to own land in fee-simple, may intervene when the land is at- tached for her husband's debt, and she be not a defendant in the attach- ment suit. Frank v. King (Humph- rey), 121 111. 250, 12 N. E. Rep. 720. 4. Wallace v. Maroney, 6 Mackey (D. C.) 221 ; Heaverin v. Robinson, . Daniel, 47 Ark. 131. That the notice to the debtor has been given as required by law may be shown by parol evidence, although the return fails to state the fact. Bentley v. White, 54 Vt. 564. 4. Under one special statute relating to the filing of lis pendens it was held § 455 SALE AND TITLE CONVEYED THEKEBY. 821 ners, and has been attached to enforce a demand of one of them only, the interest of such cotenant in the attached prop- erty only can be sold.' The other cotenant can neither be di- vested of his title nor of his possession.^ When personal property is to be sold it is usually the duty of the sheriff to have it present at the time and place of the sale. But, although it be not present, the purchaser will ac- quire good title, subject to the possibility of being defeated by an order of the court from which the execution issued, setting it aside.' By the general policy of the law, real estate can not be sold in some states until the attached personal property has been sold.* When tracts of land have been successively attached they should be sold in the order of their attachment, and only so much, or so many, sold as is necessary to satisfy the judg- ment.® But the purchaser at a sale of any attached property will not be prevented from acquiring good title by the fact that more of the attached property was sold than was necessary to satisfy the judgment. The confirmation of the sale by the court, when the statute requires such confirmation, is a jurisdictional matter and no title will pass until the sale is completed by such confirma- tion.® Redemption of land sold on execution, issuing on a judg- ment in attachment, is provided by some statutes in like manner as redemption of land from sale on mortgage fore- closure.' 1. Thompson v. Baker, 74 Me, 48. particular circumstances. True v. 2. Ante, §§57 and 61. Emery, 67 Me. 28. 3. Foster v. Mabe, 4 Ala. 402. 6. And no action can be maintained 4. Camden v. Raymond, 9 W. Va. for purchaser-money where there has 680- been no such confirmation. Freeman 5. Silvers v. Edwards, (Ky.) 7 S. v. Watkins, 52 Ark. 446, 13 S. W W. Rep. 619. Rep. 79. An equity of redemption has been 7. In Arkansas, attached land may thought to be susceptible of being sold be redeemed by the debtor within in separate portions or shares, by an twelve months after the sale on execu- ofHcer upon different executions under tion. Beard v. Wilson, 52 Ark. 290 12 S. W. Rep. 567. 822 JUDGMENT, EXECUTION AND SALE. § 456 § 456. Distribution of Proceeds.— When attached property is sold on execution issued on the judgment in the attachment suit, the proceeds must be distributed according to the priority of the liens thereon, whether such liens be from simultaneous or successive attachments,^ or from liens occasioned by other processes or conveyances.^ To lay down particular rules regarding either the judgment, the execution, the sale, the title acquired on judicial sale, or the distribution of proceeds thereafter does not properly come within the scope of this work and the practitioner is referred to some special work on each of these subjects. 1. Ante, §§ 408, 409. Trust Co. v. Boardman, 149 Mass. 158, 2. As to the distribution of the 21 N. E. Rep. 239; Taylor v. Thurman, proceeds under particular local stat- (Tex.) 12 S. W. Rep. 614; Rawles ». utes and under particular circum- People, 2 Colo. App. 501, 31 Pac. Rep. stances, see State v. Young, 40 La. 941. Ann. 203, 3 So. Rep. 722 ; International CHAPTER XXII. REVIEW OF ATTACHMENT PROCEEDINGS. §457. Generally. §461. By bill of review. 458. By supersedeas. 462. By writ of certiorari. 459. By appeal. 463. By petition to vacate judg- 460. On writ of error— Bill of ex- ment. ceptions. 464. By petition to vacate the sale. § 457. Generally. — Attachment proceedings had in any in- ferior court are as much subject to review as any other legal proceeding of an inferior tribunal. In a preceding chapter/ we treated of "Dissolution of Attachment," but this was a pro- ceeding instituted in the court in which the action was begun, and for the purpose of testing the regularity of the attachment as well as the plaintiff's right to have attachment. It is wholly distinct from a proceeding 7iot in the court granting the attach- ment, but in a court of superior jurisdiction, to review the ac- tion of the court below in the attachment proceedings. Steps toward obtaining a dissolution of the attachment must neces- sarily be taken before judgment in the attachment proceedings, because after judgment there is no attachment to have dis- solved. The attachment has been merged into the judgment.^ Proceedings in a superior court, to review the action of the in- ferior court, can not, as a rule, be instituted until after final judgment has been entered in the court below. It is true that under some circumstances, the court above will, by injunction, restrain the court below from proceeding by a remedy so harsh and so much in disfavor as a writ of attachment. But the in- junction is to stop the action in the court below before proceed- ing to judgment. Being a writ to stop the proceeding it can not be considered a review of such proceeding, and therefore 1. Ante, Chapter XV, §§ 326-356. 2. Ante, § 452. (823) 824 REVIEW OF ATTACHMENT PROCEEDINGS. §45/ needs no mention in this connection. Such irregularities as are by the statute of Jeofails cured by the verdict, must, if ques- tioned at all, be brought to the attention of the court on a pro- ceeding to dissolve the attachment, because no questions regard- ing the same can be raised thereafter;' but the illegality of the proceedings, and such objections as go to the jurisdiction of the court to entertain the attachment suit and pass judgment thereon, may be questioned collaterally and reviewed in a court of superior jurisdiction. It is the general rule that a proceed- ing to dissolve the attachment will only bring in question the attachment itself, because to consider more would be to try the case upon its merits upon a mere motion.' But in a review of attachment proceedings the attention of the court of review may not only be called to the defect in the attachment itself, but as well to the action in the original cause. But it must be remembered that in attachment cases, like in all other cases, discretionary orders and rulings of the court below can not be questioned in a court above. It is only such matters as may properly be termed a final judgment of an inferior court that can be reviewed by a superior court.' These principles are so well known as to need no support here by the citation of au- thorities. In almost every state the acts of an inferior court, in attach- ment proceedings, may, in some manner and at some time, be reviewed in a court having revisory or appellate powers.* The modes of practice in this regard are so various as to make them inappropriate for consideration here, except by the following brief sections, which are designed more as hints to the possible 1. The question whether an attach- view. Goss v. Board of Com'rs, 4 ment will lie on the contract sued on Colo. 468. can not, after a judgment in the at- It is held that after judgment that tachment suit, be raised by an affidavit the grmmd for attachment can not be of illegality. Craig u. Herring, 80 Ga. attacked co?7ato-fflZ7y. Burnett v. Mc- 709, 6 S. E. Rep. 283. Cluey, 92 Mo. 320, 4 S. W. Rep. 694. 2. Miller v. Chandler, 29 La. Ann. 4. Under one statute in Virginia an 88. absent debtor might, within seven 3. The affidavit filed in the case is a years, appear and petition to have the pleading, and as such is brought up to cause reheard. Rootes v. Tompkins, a superior court on the record for re- 3 Gratt. (Va.) 98. §§ 458, 459 BY SUPERSEDEAS. 825 procedure, than as guides to the proper procedure. The prac- titioner must look elsewhere for the rules governing his local practice. A consideration of them is beyond the scope of this work. § 458. By supersedeas. — In the state of New York before the adoption of the code the supreme court would, upon a showing by affidavit, question the legality of the proceeding pending in the court below and would review the order grant- ing it, and, if it was found to have been illegally granted, award a supersedeas reversing that order, which writ would operate to release the property and authorize the officer to return it to the debtor.^ The proceeding by supersedeas was final as to the attachment.^ And when the attachment was found to be regular the court proceeded to hear the cause as on any other process.^ Under the code practice in New York the court issuing the attachment inquires into the ground upon which it was issued upon a special motion being filed for that purpose. This is a movement to dissolve the attachment and will be found in the chapter treating on that subject.* An appeal may be also provided by statute by which an appellate court may be brought to review the proceedings of the trial court. § 459. By appeal. — An appeal may be a competent proceed- ing to review the action of a court below and test the legality 1. Lenox v. Howland, 3 Caines (N. demand had been made, a supersedeas Y.) 257 ; McQueen v. Middletown Mfg. with costs would be granted. Warner Co., 16 Johns. (N. Y.) 5; Ex parte and Phelps's Case, 3 Wend. (N. Y.) Chipman, 1 Wend. (N. Y.) 66; Mc- 424; Chipman's Case, 1 Wend. (N. Camyu. Lawson,3Head (Tenn.) 256; Y.) 66; Bunch's Case, 9 Wend. (N. McKinley's Case, Col. & Caines' (N. Y.) 473. Y.) Cas. 82, 1 Johns. (N. Y.) Cas. 137. But though the debtor was unable 2. Learned v. Duval, 3 Johns. (N. to sustain his motion for supersedeas Y.) Cas. 141. he would not be liable to costs where 3. Field v. M'Vickar, 9 Johns. (N. he had given security according to Y.) 130. the statute. Ex parte Schuneman, 2 When the debtor showed that he Wend. (N. Y.) 285. had given no ground for attachment, 4. Ante, Chapter XV, §§ 326-356. as alleged, or that a settlement of the 826 REVIEW OF ATTACHMENT PROCEEDINGS. § 459 of an attachment sustained in it, or to question the legality of the court in failing to sustain it ; and an appeal may also be proper, although there may be some special statutory proceed- ing to accomplish a like result, when such statute is not ex- clusive in its terms. No appeal, however, can be taken from any discretionary order in the court below in granting an attachment or in refusing to grant it. On appeal a court can only review a final judgment.^ A judgment dismissing an attachment or sustaining it may be appealed from.^ In Iowa an appeal from an order dissolving or sustaining an attach- ment brings the main case up for review only so far as is necessary for the appellate court to understand and dispose of the question upon which the party has appealed.' But in North Carolina, where the parties so agree, on an appeal dis- missing an attachment, the court may hear and determine the matter instead of sending it back to the court below.* In Minnesota the court will not, on appeal from a judgment upon service of summons by publication against a non-resident having property within the jurisdiction of the court, question the existence of the property. The judgment is conclusive upon that question.^ In Nebraska the appellate court in re- viewing attachment proceedings will not reverse the decision of the court below on the facts, unless it is clearly wrong, where the defendant denied the truth of the affidavit and upon inquiry conflicting affidavits were filed by both parties.^ Where an appeal is specially provided for by statute the effects of the appeal will be such as are prescribed by that statute. Under a New York statute an appeal from the judg- ment of the court below suspended all proceedings thereon and released the property held under the attachment.' But an 1. Allender v. Fritts, 24 Cal. 447; 3. Berry v. Gravel, 11 Iowa 135. Gill V. Downs, 26 Ala. 670. 4. Gushing v. Styron, 104 N. C. 338, Rejecting an answer denying the 10 S. E. Eep. 258. truth of the affidavit is such error as 5, Stone v. Myers, 9 Minn. 303. will sustain an appeal. Fleming v. 6. Johnson v. Steele, 23 Neb. 82, 36 Dorst, 18 Ind. 493. N. W. Rep. 358. 2. Haviland v. Wehle, 11 Abb. (N. 7. Keyser v. Waterbury, 7 Barb.(N. Y.) Pr. N. S. 447; Noonan v. Pome- Y.) 65o! roy, 14 Wis. 568. § 460 ON WRIT OF ERKOR BILL OF EXCEPTIONS. 827 appeal from a judgment vacating the attachment and dismiss- ing the suit would not prevent the same plaintiff from procur- ing an attachment against the same defendant in a suit in another court on the same cause of action.^ Likewise a special statutory appeal can not be taken by another than is indicated by the express words of the statute.^ An intervener claiming a right to the property attached or in the proceeds thereof can, when the judgment affects him, appeal in the same manner that other parties could.' If the appellate court overrules the decision of the court below re- fusing to hear the intervention, the appellate court will proceed with the interpleader and should not grant a procedendo when there is nothing in the court below upon which to proceed.* An appeal is a proper proceeding from a judgment rendered in garnishment cases, but this subject will receive attention in a subsequent part of this wovk.^ § 460. On writ of error — Bill of exceptions. — No issues presented to and decided by a trial court in attachment can be reviewed on writ of error by a superior court unless the same are made to appear upon the record of the court below.* Therefore irregularities and defects in the affidavit and bond made on suing out the writ are not available on writ of error unless an exception has been taken in the lower court by plea in abatement,' or by a "bill of exceptions," the purpose of which is to make matters appear of record which without it would not so appear and consequently could not be reviewed.^ l.Haviland v. Wehle, 11 Abb. (N. 3. Cabot v. Burnham, 28 Vt. 694. Y. ) Pr. N. S. 447. 4. Evans v. Governor's, etc., Transp. 2. Leeds v. Mueller, 51 N. J. L. 467, and Min. Co., 5 Jones (N. C.) L. 331. 17 Atl. Rep. 954. 5. See, post, Vol. II, "Garnish- In Virginia an absent defendant ment." can not appeal from a decree rendered 6. Hazeltine v. Page, 4 Vt. 49 ; Mc- against him. He can only avail him- Daniels t). Morton, 34 Vt. 101. self of the remedy provided by statute. 7. Burt v. Parish, 9 Ala. 211. Barbee v. Pannill, 6 Gratt. (Va.) 442. 8. As a general rule all objections Further as to appeal in Virginia, see to the affidavit, bond and writ of at- Moore v. Holt, 10 Gratt. (Va.) 284 ; tachment, which objections do not and as to what may be contested relate to jurisdictional defects, must therein, see Heffernan v. Grymes, 2 be brought to the attention of the Leigh. (Va.) 512. court below that the plaintiff may 828 REVIEW OF ATTACHMENT PROCEEDINGS. § 460 Errors to be assigned must have been brought to the atten- tion of the court below, and by it passed upon so that its rul- ings may be final as to them; for nothing but a final judgment can be reviewed. Where there has been no motion in a court below to dismiss an attachment, the defendant can not assign as error the neglect of the court below to dismiss it.^ And where there has been no plea or motion to quash the attach- ment in the court below, the court of errors will not dismiss it, although it reverses the judgment itself for error. ^ However, a writ of error from the Supreme Court of the United States, to reverse a judgment of the state court before execution, dis- charges an attachment in the original suit; where an act of congress provides that security shall be given by the plaintiff in error, which security is substituted for the attachment.* Furthermore, the record must show that a trial was had and that judgment was entered in the court below or the court above will not review the matters brought up by the bill of excep- tions.* Nor will the reviewing court overrule a motion made after judgment to strike from the indorsement of the levy upon the writ whatever relates to lands. Such refusal is no ground for error.* The rules governing bills of exceptions and review on writs of error in attachment cases are generally the same as those early known to the common law, and further defined by the statute of Westminster 2d, 13 Edw. I, which was passed in the year 1285.® And they have been too frequently stated to need further mention here. have sufficient opportunity to correct 1. Frink v. King, 4 111. (3 Scam.) them ; and they will be waived if not 144. there objected to. Conklin v. Harris, 2. Thompson v. Raymon, 8 Miss. 5 Ala. 213; Miere v. Brush, (3 Scam.) (7 How.) 186. 4 111. 21 ; Morris v. Trustees, etc., 15 3. Otis v. Warren, 16 Mass. 53. 111. 266; Bretney v. Jones, 1 Greene 4. Case t\ Moore, 21 Ala. 758; Mar- (lowa) 366; a7ite, §§ 152, 179, 197, 222 riott v. Lewis, 25 Ala. 332. and 238. 5. Cannon v. Logan, 5 Port. (Ala.) But one case holds that an affidavit 77. filed in a case is a pleading and as 6. 2 Reeves History of English Law, such is brought up on the record for 186, 188, 189; 3 Bla. Com. 372. review by the superior court. Goss V. Board of Com'rs, 4 Colo. 468. §§461,462 BY BILL OF REVIEW. 829 § 461 By bill o! review.-A court of equity has jurisdiction to revise all judgments of courts below, which have been ob- tained through fraud in the proceedings, or where some palpa- ble and injurious mistake has been made by such inferior court. A bill of review is an appropriate remedy in cases where error is apparent on the face of the decree or for material matter discovered since the decree was entered; and an original bill is properly resorted to where a decree is to be impeached as having been obtained by fraud.' Where there has been a mistake in entering the judgment, a court Of equity likewise will grant relief on a writ of review, and will thereupon reverse the judgment entered,^or revise it so it will stand as it originally ought to have been.^ § 462 By writ of certiorari.— A writ of certiorari may be resorted to for the purpose of removing attachment proceedings . to a court of superior jurisdiction when there is some error to be corrected, but not otherwise/ Rules and orders made withm the legal discretion of the trial judge can not be reviewed upon certiorari.' The jurisdiction to review the proceedings m the court below for the purpose of setting them aside is acquired only by the report made, or the certiorari returned.^ Whereaper- sonhas had a right to appeal, or other remedy at law and has by neglect lost his opportunity for taking advantage thereof , he 1 Pinknev v. Jay,12 Gill. & J.(Md.) 4. Birchfield v. Harris 9 Nev. 382. 1. Pmkney J ay, Further, as to legal rules regarding Tke proceem^.-V^l^ere the defend- such P— lings^see ^-rned - D- ant is a non-resident the proceedings val 3 J«^;^^,V^^ 30 • Curtis . in the bill must, before decree, be the Faulkner, 4 Hill. (N. \ .) 30 , Curtis v. same as the sul>p<.na bad beenregu- Steever, 36 N.J. L. 30^; Cory .. Lewis, arTy served. After a decree is en- 5. N.J. L. (2 South.) 846; Hartshorn tered It can only be revised, accord- .. Wilson, 2 Ohio 27; Derrett .. Alex- ins to the established principles of ander, 25 Ala. 265. equity, in the same manner as if the As to the removal to the supreme defendant had regularly appeared, court by ce^oran before and after the Pinkney .. Jay, 12 Gill. & J. (Md.) suing out of a sare /«-« ^/^^^^j " gg , vania, see Walker v. Gibbs, ^ Uaii. 2. Carrique v. Bristol Print Works, 211, 1 Yeates (Pa.) 255. 8 Mete. (Mass.) 444. 5- ^^ P<^rte Gilbert, 7 Wend. (N. Y.) 3. Ayres v. Bartlet, 14 N. J. L. (2 490. Green.) 330. 830 REVIEW OF ATTACHMENT PROCEEDINGS. §§463,464 can not resort to a writ of certiorari thereafter. A writ of cer- tiorari is not intended to aid one who, having an adequate remedy at law, has lost it by his own laches.' § 463. By petition to vacate Judgment. — In some states where a judgment in attachment (or garnishment) has been erroneously entered, a petition to vacate the same is the proper proceeding when interposed within a proper time.^ § 464. By petition to vacate the sale. — Likewise where void attachment proceedings have been had and the property has been sold thereunder, such sale may be properly set aside where the court still has jurisdiction of the attached property. Where it is necessary to have a sale affirmed such sale, if made on illegal proceedings, may be set aside at any time before the confirmation. Until such sale is confirmed the bidder, though he be a third person, has not acquired absolute title thereto.' 1. Fagg V. Parker, 11 Iowa 18. 31 ; Post v. Bowen, 35 Md. 232 ; Ingle 2. Corbitt v. Pynea, 45 Ala. 258; «. McCurry, 1 Helsk. (Tenn.) 26. Underwood v. Dollins, 47 Mo. 259; 3. Abbott v. Flagg, 1 Heisk. (Tenn.) Southern Bank v. McDonald, 46 Mo. 742; Ogg v. Leinart, 1 Heisk. (Tenn.) 40. END VOLUME I. i*