[Cartwright v. Bamberger, Bloom & Co.] for the protection of their interests, by moving a dissolution of the attachment, or a discharge of the levy. The right to intervene as a party to a suit invests the intervenor with the privilege of becoming an active litigant, of examining witnesses for himself, cross-examining those of his adversary, of being heard before the court and jury, and of appealing from any final judgment rendered against him. A stranger, whose rights are only incidentally affected by a pending attachment suit, has no such privilege in this State, whatever be the nature of the defense he may desire to interpose. We are not willing, at this late day, to incorporate such a practice into our jurisprudence. The precise question here under consideration arose in the case of Hale v. Chandler, 3 Mich. 531. It was there held that subsequent attaching creditors were not permitted to appear and defend a prior attachment suit, in the name of an absent debtor, but that such creditors might by bill in chancery contest the lien claimed by a prior attaching creditor, especially on the ground of fraud. The cases which authorize such a practice in courts of law are reviewed by the court, and the conclusion reached, that, even if strangers can be accorded such a privilege-viz., that of intervening to defend in the name of the defendant in the attachment suit-it is not a matter of legal right, and, if recognized at all, it would only be considered as cumulative to their right of action by bill in chancery. The case of Cogburn v. Pollock, 54 Miss. 639, also fully sustains the jurisdiction of chancery in cases of this nature. There, a subsequent attaching creditor, whose attachment had been levied on a stock of merchandise in a storehouse, was permitted by bill in equity to assail, as collusive and fraudulent, a prior seizure of the goods under a process of distress for rent by the landlord of the defendant in attachment. An injunction was also sustained, in aid of the attachment, to prevent the appropriation of the goods pendente lite by the insolvent debtor, to the prejudice of the complainants. It was said by the court, that the right of complainants to maintain the bill is well sustained by authority. To like effect is the case of Heyneman v. Dannenberg, 6 Cal. 376. These cases seem to us to be entirely sound in the conclusions thus reached, especially in this State, where a creditor's bill will lie by one without a lien. It has been adjudged, and needs no argument to justify the conclusion, that the summary jurisdiction exercised by a court of law in determining the priorities of the legal liens of rival attaching creditors, whether on the motion of the sheriff, or of the parties themselves, asking for a distribution of the fund [Cartwright v. Bamberger, Bloom & Co.] arising from the sale of the attached property, in no manner interferes with the jurisdiction of equity to adjust the rights of such rival claimants, in a proper case, for cognizance by a court of equity.-Gusdorf & Co. v. Ikelheimer & Co., 75 Ala. 148. In no aspect in which we view the case, can we see that the complainants had a plain and adequate remedy at law, such as would oust the more efficient jurisdiction of a court of equity, which is peculiarly suited to determine the rights of the parties litigant to this suit. Not only is fraud alleged in the simulated character of Cartwright's demand, but there is the averment of an attempt by an insolvent debtor to use the process of attachment as a means of effecting a fraudulent transfer of his property. The property attached is personal and movable, and liable to be lost by distribution to an insolvent litigant. The race for precedence among rival lienholders involves the necessity of staying the process of the law court, until equity can sit to adjust the conflicting priorities. The averment of the bill, that Cartwright's demand of about $9,500, for which he had procured an attachment, was "simulated," is the averment of a fact, and not of a legal conclusion. Simulated means "counterfeited; feigned; pretended."—Worcester's Dict. "Assuming the mere appearance without the reality."-Webster. The averment that the debt was simulated, and that Pinkus & Co. in fact owed Cartwright “a small sum," the amount of which was unknown to the complainants, is sufficiently specific, and not subject to the defendants' objections raised by demurrer. We are of opinion that the defendant Ryan, who, as sheriff, had legal custody of the attached goods as a stake-holder, was a proper party to this suit. But, however this may be, he made no objection based on the fact of his alleged misjoinder, and the other defendants could take no advantage of it.-Horton v. Sledge, 29 Ala. 478. The defendant Cartwright's answer to the bill nowhere explains with sufficient certainty the consideration of the large debt which he claims to hold against the defendants in attachment, the very execution and bona fides of which were challenged by the complainants' bill. It was charged that this demand was largely simulated-having no reality of existence except in appearance merely-except for a very small sum. The answer should have met the charge fairly and without evasion. The matter must have been within the knowledge of the claimant. He should not only have denied the fact of the alleged debt being feigned, and have asserted the valuable [Compton v. Hankins.] character of the consideration, but he should have stated fully, and without evasion, the nature of such consideration, whether it was for money loaned, labor done, for goods or other property sold, or otherwise, and the particular nature and kind of service or property, if any. The answer in this particular, to say nothing of other defects in its averments, was insufficient to justify a dissolution of the injunction. The City Court did not err in refusing to dissolve the injunction, nor in rendering the decree overruling the demurrers to the bill. Nor do we discover any other reversible error in its rulings. The decree is accordingly affirmed. Compton v. Hankins. Action for Damages against Owner of Warehouse and Landing on Navigable River. 1. Navigable river; uses for navigation; riparian rights.—Though a navigable river is public, its banks are private property; and the right of the public to use the stream, without obstruction, for all the purposes of navigation, does not include the right to land on the bank without the consent of the owner, except in case of some peril or emergency of navigation. 2. Public and private landings and wharves.—Whether a wharf or landing is public or private, depends upon the ownership of the soil, the purposes for which it was built, the authority by which it was erected, the uses to which it has been applied, and the nature and character of the structure itself. If constructed on land which belongs to the public, or built by public authority on land which has been condemned, or at the terminus of a public highway, practically forming a part of it, or dedicated by the owner to the use of the public, it is regarded as a public wharf or landing; but, if constructed by a riparian proprietor on his own land, and used by him for his own benefit, charging compensation for its use by other persons, no presumption of a dedication to the public ar ses from such uses for twenty years or more, and he may at any time revoke the implied license to the public generally, or refuse the use to any one person. 3. Action for damages against owner of warehouse and landing on navigable river.-In an action to recover damages for the defendant's refusal to receive and keep, at his landing, pine logs belonging to plaintiff, which were to be rafted down the river; if the complaint only alleges that the defendant was "the owner and keeper of a public landing and warehouse on a navigable river," and refused to receive plaintiff's logs, when offered, for shipment in the usual course of business, it shows no cause of action; and an additional averment that the refusal was malicious, does not cure the defect. APPEAL from the Circuit Court of Marengo. 90 411 109 69 [Compton v. Hankins.] This action was brought by Joseph H. Compton against Joseph M. Hankins, and was commenced on the 22d August, 1888. The original complaint contained two counts, and two other counts were added by amendment. Each count alleged that the defendant "was the keeper and owner of a public warehouse and landing on the Tombigbee river, which is a navigable stream," and claimed damages for his refusal to receive at said landing, or to allow plaintiff to deposit there, pine timber intended to be rafted down the river, in the usual course of business, plaintiff offering to pay a reasonable reward for the service; and each alleged that the timber was offered at a proper time, and that the defendant had the means of receiving it. The second count alleged, also, that the defendant prevented plaintiff from depositing his timber at the landing by erecting a fence across it, and thereby obstructing its use; and the third and fourth counts further alleged, that the defendant's refusal and other acts were malicious, and claimed special damages on account of the delay in getting the timber to market, deterioration of value, &c. The court sustained a demurrer to each count, and its judgment is here assigned as error. GEO. W. TAYLOR, for appellant.-The complaint alleges, in each count, that the defendant was the keeper of a public warehouse and landing, and the demurrer admits that fact. How the warehouse and landing became public, is immaterial. A public warehouse is always private property, affected with a public use or interest, though mere user may not make it public. The duties of a public warehouseman and wharfinger are similar, if not identical with, those of a common carrier and innkeeper.-1 Jones on Liens, 967-9; Gould on Waters, § 119; 1 Dill. Mun. Corp., §§ 104-5; Swords v. Edgar, 59 N. Y. 28, or 17 Amer. Rep. 295; Rivara v. Ghio, 3 E. D. Smith, N. Y. 264; Mann v. Illinois, 94 U. S. 113-51. A public warehouseman has a lien, given to him by the law as the price or consideration for the duty required of him to the public. Steinman v. Wilkins, 42 Amer. Dec. 254, note. The lien and duty grow out of the character of the business,and are not affected by the private ownership of the property. In O'Neill v. Annett, 72 Amer. Dec. 364, the fact was contested whether the landing was public. TAYLOE & JOHNSTON, contra, cited Washb. Easements, 549-50, 554-5; O'Neill v. Annett, 72 Amer. Dec. 364; Post v. Pearsall, 20 Wend. 111, and 22 Wend. 425; Bainbridge v. Sherlock, 95 Amer. Dec. 644; Morgan v. Reading, 3 Sm. [Compton v. Hankins.] & M. 366; Magnolia v. Marshall, 39 Miss. 109; Ball v. Herbert, 2 D. & E. 137, or 3 T. R. 253; Lorman v. Benson, 77 Amer. Dec. 435; Angell on Highways, §§ 551-2, notes. CLOPTON, J.-The action is brought by appellant to recover damages alleged to have been sustained by the refusal of defendant, who, the complaint avers, is the keeper and owner of a public warehouse and landing on the Tombigbee river, a navigable stream, to receive at the landing, for shipment, pine timber tendered by plaintiff, or to permit him to deposit the same at the landing, preparatory to being rafted by the river to market. The complaint avers, that defendant had the means of receiving the timber, and that plaintiff was ready and offered to pay a proper reward therefor. It is obvious, that the gravamen of the action is the refusal of defendant to permit the use of the landing for the safe-keeping and storage of the timber until it could be rafted; not the violation of any right incident or appurtenant to the right of navigation. The demurrer to the complaint, which was sustained by the court, involves the inquiries, what are the rights of the public in respect to the use of the landing, and what the duty of defendant in regard to the storage of timber? While the authorities are not in entire harmony, in reference to the respective rights of navigators of public streams above the ebb and flow of the tide, and of riparian owners, the better opinion seems to be, that the right to the use of the stream as a highway, and to land for purposes of receiving and discharging freight and passengers, are distinct, and those navigating the river have no right, as incident to the right of navigation, to land upon and use the bank for the purpose of loading or unloading vessels, without the consent of the owner, unless in cases of necessity. In Washburn on Easements, 554, the author observes: "In regard to the right to land upon other points of the banks of a navigable stream than those which have in some way become public landings, the law would seem to confine it to cases of necessity, where, in the proper exercise of the right of passage upon the stream of water, it becomes unavoidable that one should make use of the bank for landing upon, or fastening his craft in the prosecution of his passage." In Bainbridge v. Sherlock, 29 Ind. 364; 95 Amer. Dec. 644, it is said: "The river being public, and its banks being private, it is not difficult to discover the true foundation of those riparian rights, known as 'wharf rights. It is essential to the successful prosecution of his business, that the navigator shall make frequent landings to lade and unlade, to receive and discharge passengers, and to |