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had no interest in the land, the building would be personal property. Now the plaintiff claims it as personal property. It does not appear that this building stood on land owned by any private individual. At any rate, plaintiff makes no claim to it. It was not a fixture. It had no cellar. It was a temporary shelter and used only while the owner was carrying on the fishery."

Having stated the common law of venue-its origin, history, and the reasons and grounds upon which it is founded-sufficiently for the present purpose, it becomes necessary and proper to consider the statutes of this State providing for the place of trial of actions of trespass to realty. The Revised Statutes provided that actions for trespass on land, and actions for trespass on the case for injuries to real estate, shall be tried in the county where the cause of action arose (vol. 2, p. 409), but made no provision for trespass on lands situated out of the State. The old Code provided that actions for injuries to real property must be tried in the county in which the subject of the action is situated, subject to the power of the court to change the place of trial, in the cases provided by statute; but it made no provision for actions for injuries to real property situated out of the State. The new Code provides that actions for waste or for a nuisance shall be tried in the county where the subject of the action is situated, but makes no provision for actions for trespass on lands. "But where all the real property, to which the action relates, is situated without the State, the action must be tried as prescribed in section 984 of this act." § 982. "An action not specified in the last two sections must be tried in the county in which one of the parties resided at the commencement thereof. If neither of the parties then resided in the State, it may be tried in any county which the plaintiff designates for that purpose in the title of the complaint." § 984. Accordingly, an action for injuries to real property, other than waste or nuisance, may be tried in a county other than that in which the land is situated; and this, though the land is situated in a foreign State.

The common law of venue, with all its technicalities, fictions, formalities and artificial distinctions, has been abrogated by the Code, which contains full provisions for the place of trial of actions. Doctrines and rules founded on the common law of venue, and not maintainable upon the principles of general jurisprudence, fall with the abrogation of that law, and are no longer sustainable. The formal distinction between local and transitory actions is abolished, and many actions which, by the common law, were local, are now transitory. The doctrine that the courts of one State or country have no jurisdiction of an action of trespass to land situated in another, was founded and established upon technical and artificial reasons, which no longer prevail. The courts of England refused to take cognizance of such injuries, not because, upon principles of general jurisprudence, jurisdiction thereof was not maintainable, but because, according to the law of venue, actions for injuries to land were denominated local, and were required to be tried only in the county where the land was situated. But land situated in a foreign country is not situated in England. Ergo, an action for injuries to such land cannot be tried in England. The place where the cause of action arose was required to be stated in the declaration. If the action was transitory, and the act or transaction out of which it arose happened in a foreign country, it must be alleged to have happened in some county in England, so that the courts could take cognizance thereof, and the defendant was precluded from traversing the place falsely alleged. But the courts refused to extend this fiction to local actions, and allow the plaintiff to allege that the cause of action accrued within the realm, when it actually accrued in a foreign

country. As the venue in such case could not be laid in England, it followed that the courts had no jurisdiction, and this fallacy is upheld to this day. Unless some good and satisfactory reason derived from general jurisprudence (not a technical reason derived from an artificial system of law) can be adduced against the jurisdiction, wo must conclude that the doctrine under consideration has been abrogated by the Code. No reason has been stated, and it seems none can be given, against the jurisdiction, in such cases, which will not equally apply to other actions of which the courts take cognizance. This doctrine is so utterly opposed to the state and condition of things in this country, and is manifestly so unjust and unsound, that it cannot be upheld much longer, but will be repudiated and overthrown, when the grounds and reasons upon which it is based are pointed out to the courts, and its fallacy is exposed. Such a doctrine is not suitable to a country composed of many sovereign, independent States, bound together by compact, but which, in respect to this doctrine, are foreign to each other. Redress for injuries to land situated in one State cannot be obtained in the courts of any other. A person may commit a wanton or negligent injury to land in another State, to which he has not a shadow of title, and yet our courts refuse to award satisfaction in damages to the owner of the land. With as much reason might they deny any remedy to the owner of personal property injured or destroyed at a place beyond its jurisdiction. In trespass, the title to the property may come in question, but it is not essential that it should. Proof of actual possession is sufficient to maintain this action against a stranger, or a person who cannot make out a title prima facie entitling him to the possession. Therefore, a tenant for years, a lessee at will, and a tenant by sufferance, may support this action against a stranger. If both parties should set up an apparently good title, and it should become necessary to determine their validity, the action should perhaps be dismissed, because it seems the courts of one State or country cannot settle the title to lands in another. However, there is no reason why the defendant should be allowed to oust the court of its jurisdiction of the matter in controversy by a simple denial of plaintiff's title, possession or right of possession. Mr. Wharton says that whether a court has jurisdiction of a suit for damages to real estate is doubted; but as such suits do not touch the title, it is hard to see how jurisdiction can be refused, when the court has regularly before it the parties. Confl. of Laws, $ 814. And two of the ablest and most distinguished jurists of any age or country have declared themselves unable to perceive any reason for the doctrine, other than a technical one, and have expressed their disapprobation of the same. We may conclude, therefore, that this doctrine, being founded on the common law of venue, and arising from an arbitrary distinction between transitory and local actions, and not being sustainable upon principles of general jurisprudence, is abrogated by the Code. In respect to actions for nuisances, it may be said that the courts of one State cannot determine a thing to be a nuisance to lands situated in another, when, perhaps, the courts of the latter State would be of a different opinion. However this may be, the owner of the land injured by the nuisance would have a remedy in the State where the land is situated, by a suit in equity for its abatement; and the court having adjudged the thing to be a nuisance, an action for damages could then be brought in any other State where the defendant might be found.

The right of a man to be protected in the enjoyment of his property is a right that avails against the world at large, and a duty is incumbent upon every person to abstain from the violation of such right. For a violation or infringement of such right, or a breach of such duty, a cause of action accrues to the one, and a lia

bill was filed. They employed Humphrey to procure an abstract of title. In examining the title he found there was no deed from Chapman.

He thereupon sought out Chapman, and by repre

bility is incurred by the other. Personal rights and obligations growing out of the duty which man owes to man, follow those who are entitled to enforce or bound to fulfill them, wherever they may go, and should be enforced by every court which obtains juris-senting to him that the object was to protect the title diction over the parties, without regard to the situation of the subject-matter of the controversy. The subject of the right may be local, but the right itself is not. "If the law be a science, and really deserves so sublime a name, it must be founded on principle and claim au exalted rank in the empire of reason."

F. P. MURRAY.

ATTORNEY AND CLIENT-CONTRACT BY ATTORNEY IN FRAUD OF CLIENT.

SUPREME COURT OF THE UNITED STATES-OCTOBER TERM, 1879

BAKER, Appellant, v. HUMPHREY ET AL.

B., who had agreed to sell lands to which he claimed title, to H. & S. for $8,000, employed W., an attorney, who had long been employed by him to do legal business, to draw the contract of sale, which W. did, and witnessed its execution. H. and S. then employed W. to examine the title. In doing this W. found that the title was apparently in C., though C. had never asserted it. W., for a consideration of $25, representing that he wished it to protect the title of clients, procured a conveyance of the lands to his brother from C. The brother was not cognizant of this transaction. Thereafter W. instituted n action of ejectment in his brother's name to recover the lands. In an action by B. to have the deed to the brother of W. declared fraudulent, etc., held, that the relation of client and counsel subsisted between B. and W., and the conveyance from C. to the brother inured to the benefit of B.

A

PPEAL from the Circuit Court of the United States for the Eastern District of Michigan. Action in equity by Sanford Baker against George P. Humphrey, Hiram D. Hurd, Charles A. Hurd and David Smith. The opinion states the case.

SWAYNE, J. This is an appeal in equity. A brief statement of the case, as made by the bill, will be sufficient for the purposes of this opinion.

On the 27th of February, 1851, one William Scott conveyed the premises in controversy to Bela Chapman, taking from him a mortgage for the amount of the purchase-money, which was $3,500.

Both the deed and mortgage were properly recorded. Chapman did not take possession of the premises. On the 29th of November, 1851, Scott assigned the mortgage to Jacob Sammons.

The assignment was duly recorded on the 19th of March, 1852. Sammons conveyed the premises with warranty to Wm. M. Belote. From him there is a regular sequence of conveyances down to the complainant, Baker. Chapman lived near the property for years and knew that Sammons and others were in adverse possession and claimed title, but never claimed or intimated that he had any title himself. He drew deeds of warranty and quit-claim of the premises from others claiming under Scott, and as a justice of the peace or notary public, took the acknowledgment of such deeds. Upon those occasions also he was silent as to any defect in the title.

The complainant entered into a contract with the defendants Hurd & Smith to sell and convey the premises to them for the sum of $8,000.

He employed Wells S. Humphrey; a reputable attorney, who, for a long time, had been employed by the complainant when he had any legal business to do, to draw the contract. Humphrey accordingly drew the agreement and witnessed its execution. Hurd & Smith thereupon took possession and held it when the

of clients, procured Chapman to execute a quit-claim deed of the premises to George P. Humphrey, the brother of the attorney, for the sum of $25. The deed bears date on the 10th of June, 1872. George knew nothing of the transaction until some time afterward. An action of ejectment was instituted in his name to recover the property. Baker tendered to him $25, the amount he had paid for the deed; offered to pay any expenses incurred in his procuring it, and demanded a release. He declined to accept or convey.

The prayer of the bill is that the deed to George P. Humphrey be decreed to be fraudulent, and to stand for the benefit of the complainant; that the grantee be directed to convey to Baker, upon such terms as may be deemed equitable, and for general relief.

Such is the complainant's case, according to the averments of the bill.

The testimony leaves no room for doubt as to the material facts of the case.

The direction for drawing the contract between Hurds & Smith and Baker was given to the attorney by Robling, the agent of Baker. Baker resided in Canada. Hurds & Smith directed the attorney to procure the abstract of title. With this Baker and Robling had nothing to do. The attorney disclosed the state of the title to Hurds & Smith, but carefully concealed it from Robling. Hurds & Smith being assured by the attorney that whatever they might pay Baker could be recovered back if his title failed, executed the contract with Baker, and declined to buy the Chapman title, but gave the attorney their permission to buy it for himself. There is evidence in the record tending strongly to show that there was a secret agreement between them and the attorney, that if the Chapman title were sustained they should have the property for $5,000, which was $3,000 less than they had agreed to pay Baker. This would effect to them a saving of $3,000 in the cost. They refused to file this

bill, and declined to have any thing to do with the litigation. It thus appears that, though unwilling to join in the battle, they were willing to share in the spoils with the adversary if the victory should be on that side.

There is in the record a bill for professional services rendered by the attorney against Baker. It contains a charge of $2 for drawing the contract with Hurds & Smith. The aggregate amount of the bill is $43. The first item is dated July 5, 1871, and the last July 12, 1872. The latter is the charge for drawing the contract. There is also a like bill against Baker and Smith of $45, and one against Baker and Mears of $6. These accounts throw light on the relation of client and counsel as it subsisted between the attorney and Baker.

With respect to Chapman we shall let the record speak for itself. Vincent testifies: "I asked him, how is it, Chapman? I thought you owned that property (referring to the premises in controversy). He said, "no; I never paid any thing on it." He said, "Sam* It is his property.' mous has a right to rent.

* * 64

**

"I asked him how he came with the deed from Scott, and he said, 'it was only to shield Sammons; that afterward Michael Dansmon paid the debt and the property went back to Sammons." When I met Bela Chapman, and he asked for Sammons and wife, he said he had drawn a deed from Sammons and wife to Belote for the premises and wanted them to sign it."

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it a while. I collected the rent. I think he occupied it with his goods and family about three months. He never occupied or had possession of the premises at any other time, to my knowledge. He came from Mackinac when he put the goods in that house. He remained here four or five years after he came from Mackinac. Ho lived in Mackinac until his death. He came over to Cheboygan several times after he went to reside at Mackinac. Sometimes he would stay a week or two, visiting. At the time he lived here he was a notary public, justice of the peace and postmaster. I know he was in the habit of drawing deeds and mortgages for any one that called on him. I don't think there was any one else here during the years 1852 and 1853 who drew deeds and mortgages but Bela Chapman in this village. My father sold the premises to William S. M. Belote. My father was in possession of the premises from 1846 until he sold to Belote."

Medard Metivier says: "I hold the office of county clerk and register of deeds for Cheboygan county; have held these offices since 1872." * * "I am in

*

my sixtieth year. I came to live in this village in 1851. Lived here ever since, except about six years when I lived in Mackinac and Chicago during the war. I know Jacob Sammons and Bela Chapman; they are both dead. I remember being at the house of Jacob Sammons when a deed was executed by Sammons and wife to Belote. I witnessed the deed. That deed was witnessed by and acknowledged before Bela Chapman, as notary public. I think there was another deed executed by Sammons and wife to Belote, which I witnessed when Bela Chapman was present. I remember the circumstances distinctly of one deed being executed, witnessed by myself and Chapman, from the fact that the room was very dark owing to Mrs. Sammous having very sore eyes, and we had to raise the curtain for more light. There was not any other full grown person there, unless Mr. Belote was there, about which I cannot state positively, than Mr. and Mrs. Sammons, Mr. Chapman and myself. A part of the deed which I witnessed was in print. It was an oldfashioned form of printed deed. Mr. Chapman brought the form from Mackinac or somewhere. He only had them here. I know the premises described in the bill in this cause, and Chapman was never in possession of them to my knowledge. I know Mr. Chapman's handwriting very well, and I remember particularly that the deeds witnessed by myself and Mr. Chapman and acknowledged before him were in his (Chapman's) handwriting, and that he drew both of them. I know one of the deeds then executed by Sammons and wife to Belote conveyed the premises in question and other property; cannot tell all of the other property."

These witnesses are unimpeached and are to be presumed unimpeachable. Their testimony is conclusive as to Chapman's relation to the property. If there could be any doubt on the point, it is removed by the fact that for $25 he conveyed property about to be sold and which was sold by Baker to responsible parties for $8,000. This fact alone is decisive as to the character of the transaction with respect to both parties. No honest mind can contemplate for a moment the conduct of the attorney without the strongest sense of disapprobation.

Chapman conveyed by a deed of quit-claim to the attorney's brother. The attorney procured the deed to be so made. It was the same thing in the view of the law as if it had been made to the attorney himself. Neither of them was in any sense a bona fine purchaser. No one taking a quit-claim deed can stand in that relation. May v. Le Claire, 11 Wall. 217.

There are other obvious considerations which point to the same conclusion as a matter of fact. It is unnecessary to specify them, and we prefer not to do so. The admissions of Chapman, while he held the legal title being contrary to his interest, are competent evi

dence against him and those claiming under him. He said the object of the conveyance to him was to protect the property against a creditor of Sammons. If such were the fact the deed was declared void by the statute of Michigan against fraudulent conveyances (2 Comp. Laws of Mich. 146); and it was made so by the common law. The aid of the statute was not necessary to this result. Clemments v. Moore, 6 Wall. 312. Nothing, therefore, passed by the deed to Chapman's grantee.

Chapman's connection with the deed from Sammons to Belote would bar him, if living, from setting up any claim at law or in equity to the premises. The facts make a complete case of estoppel in pais. This subject was fully examined in Dickerson v. Colgrove, not yet reported. We need not go over the same ground again. See, also, Cincinnati v. White's Lessee, 6 Pet. 431; Doe, d. Morris and others, 3 East, 15; and Brown v. Wheeler, 17 Conn. 353.

If Chapman had nothing to convey, his grantee could take nothing by the deed.

The latter is in exactly the situation the former would occupy if he were living and were a party to this litigation. The estoppel was conclusive in favor of Belote and those claiming under him, and this complainant has a right to insist upoa it.

But thero is another and a higher ground upon which our judgment may be rested.

The relation of client and counsel subsisted between the attorney and Baker. The employment to draw the contract with Hurds & Smith was not a solitary instance of professional service which the latter was called upon to render to the former. The bills of the attorney found in the record show the duration of the connection and the extent and variety of the items charged and paid for. They indicate a continuous understanding and consequent employment. Undoubtedly either party had the right to terminate the connection at any time; and if it were done, the other would have had no right to complain. But until this occurred the confidence manifested by the client gave him the right to expect a corresponding return of zeal, diligence, and good faith on the part of the attorney.

The employment to draw the contract was sufficient alone to put the parties in this relation to each other. Galbraith v. Elder, 8 Watts, 94; Smith v. Brotherline, 62 Penn. St. 469. But whether the relation subsisted previously or was created only for the purpose of the particular transaction in question, it carried with it the same consequences. Williamson v. Moriarty, 19 Weekly Rep. (Ir. L. and Eq.) 818.

It is the duty of an attorney to advise the client promptly whenever he has any information to give which it is important the client should receive. Hoopes v. Barnett, 26 Miss. 428; Jett v. 11empstead, 25 Ark. 462; Fox v. Cooper, 2 Q. B. 937.

In Taylor v. Blacklow, 3 Bing. N. C. 235, an attorney employed to raise money on a mortgage learned the existence of certain defects in his client's title and disclosed them to another person. As a consequence his client was subjected to litigation and otherwise injured. It was held that an action would lie against the attorney and that the client was entitled to recover.

In Com. Dig., tit. "Action on the case for deceit, A. 5," it is said that such an action lies "if a man, being intrusted in his profession, deceive him who intrusted him, or if a man retained of counsel became afterward of counsel with the other party in the same cause, or discover evidence or secrets of the cause. So if an attorney act deceptive to the prejudice of his client, as if by collusion with the demandaut he make default in a real action whereby the land is lost."

It has been held that if counsel be retained to defend a particular title to real estate he can never thereafter, unless his client consent, buy the opposing title with

out holding it in trust for those then having the title he was employed to sustain. Henry v. Raiman, 25 Penn. St. 354. Without expressing any opinion as to the soundness of this case with respect to the extent to which the principle of trusteeship is asserted, it may be laid down as a general rule that an attorney can in no case, without the client's consent, buy and hold otherwise than in trust, any adverse title or interest touching the thing to which his employment relates. He cannot in such a way put himself in an adversary position without this result. The cases to this effect are very numerous and they are all in harmony. We refer to a few of them: Smith v. Brotherline, 62 Penn. St. 461; Davis v. Smith, 43 Vt. 269; Wheeler v. Willard, 44 id. 641; Giddings & Coleman v. Eastman, 5 Pai. 561; Moore et al. v. Bracken, 27 III. 23; Hockenburg v. Carlisle, 5 Watts & S. 349; Hobedy v. Peters, 6 Jurist, pt. 1, 1794; Jett v. Hempstead, 25 Ark. 462; Case v. Carrol, 35 N. Y. 385; Lewis v. Hillman, 3 H. of L. C. 607.

The same principle is applied in cases other than those of attorney and client.

Where there are several joint lessees and one of them procures a renewal of the lease to himself, the renewal inures equally to the benefit of all the original lessees. Burrel v. Bull, 3 Sandf. Ch. 15.

Where there are two joint devisees and one of them buys up a paramount outstanding title, he holds it in trust for the other to the extent of his interest in the property, the cestui que trust refunding his proportion of the purchase-money. Van Horne v. Fonda, 5 Johns. Ch. 407.

Where a surety takes up the obligation of himself and principal, he can enforce it only to the extent of what he paid and interest. Reed v. Norris, 2 Mylne & Craig, 361.

Where a lessee had made valuable improvements pursuant to the requirements of his lease, and procured an adverse title, intending to hold the premises in his own right, it was held that he was a trustee and entitled only to be paid what the title cost him. Cleavenger v. Reimar, 3 Watts & Serg. 486.

The case in hand is peculiarly a fit one for the application of the principle we have been considering. It is always dangerous for counsel to undertake to act, in regard to the same thing, for parties whose interests are diverse. Such a case requires care and circumspection on his part. Here there could be no objection, there being no apparent conflict of interest, but upon discovering that the title was imperfect it was the duty of the attorney promptly to report the result to Baker as well as to Hurds & Smith, and to advise with the former, if it were desired, as to the best mode of curing the defect. Instead of doing this he carefully concealed the facts from Baker, gave Hurds & Smith the choice of buying, and upon their declining, bought the property for himself, and has since been engaged in a bitter litigation to wrest it from Baker. For his lapse at the outset there might be some excuse, but for his conduct subsequently there can be none. Both are condemned alike by sound ethics and the law. They are the same upon the subject. Actual fraud in such cases is not necessary to give the client a right to redress. A breach of duty is "constructive fraud," and is sufficient. Story's Eq., §§ 258, 311.

The legal profession is found wherever Christian civilization exists. Without it society could not well go on. But like all other great instrumentalities, it may be potent for evil as well as for good. Hence the importance of keeping it on the high plane it ought to occupy. Its character depends upon the conduct of its members. They are officers of the law, as well as the agents of those by whom they are employed. Their fidelity is guaranteed by the highest considerations of honor and good faith, and to these is superadded the sanction of an oath. The slightest diverg

ence from rectitude involves the breach of all these obligations. None are more honored or more deserving than those of the brotherhood, who, uniting ability with integrity, prove faithful to their trusts and worthy of the confidence reposed in them. Courts of justice can best serve both the public and the profession by applying firmly upon all proper occasions the salutary rules which have been established for their government in doing the business of their clients.

We shall discharge that duty in this instance by reversing the decree of the Circuit Court and remanding the case, with directions to enter a decree whereby it shall be required that the complainant, Baker, deposit in the clerk's office for the use of the defendant George P. Humphrey the sum of twenty-five dollars, and that Humphrey thereupon convey to Baker the premises described in the bill, and that the deed contain a covenant against the grantor's own acts and against the demands of all other persons claiming under him. And it is so ordered.

ATTACHMENT ON INSUFFICIENT AFFIDAVIT WILL NOT PROTECT OFFICER.

MICHIGAN SUPREME COURT, APRIL 30, 1880. MATTHEWS, plaintiff in error, v. DENSMORE ET AL. The fact that a writ of attachment is valid on its face will not protect an officer acting under it where it was issued without a sufficient affidavit.

ACTION in trespass for the value of goods seized by

defendant below as United States marshal, and claimed by plaintiffs below. Sufficient facts appear in the opinion.

Julian G. Dickinson and John D. Conely, for plaintiff in error.

Henry P. Henderson, for defendants in error.

COOLEY, J. Plaintiff in error is marshal of the United States for the Eastern district of Michigan, and as such levied an attachment, issuing out of the United States Circuit Court for that district, upon a stock of goods in possession of defendants in error.

The plaintiff in the attachment composed the firm of Simonds, Hatch & Whitten, and the defendants the firm of Gates & Marler. Before the attachment was served, Densmore, by virtue of one chattel mortgage given by Gates & Marler, and Elisha P. and De Witt Grow, by virtue of another, had jointly taken possession of the stock of goods, and were then in possession and making sale of them. When the marshal seized the goods and dispossessed them they brought suit in trespass. The marshal justified under his attachment. On the trial the attachment was held to be void for fatal defects in the affidavits on which it issued, and the plaintiffs had judgment.

The record in error presents only the one question, whether the court was right in ruling out the officer's justification. In this court scarcely an attempt has been made to support the affidavit. The statute under which the writ was taken out requires the plaintiff, or some one in his behalf, to make affidavit of the amount owing to him from the defendant, over and above all set-offs, and that the same is due. Comp. Laws, § 6398. The defect in the affidavit in this case was that it did not aver that the debt was due.

The affidavit might be true, and yet no right of action have accrued upon it. Cross v. McMahon 17 Mich. 571; Wells v. Parker, 26 id. 102. As this proceeding is extraordinary, and depends wholly upon the statute, the failure to follow the statute in this important particular was correctly held to render the affidavit nugatory. It is nevertheless urged on behalf of the marshal

that, though the affidavit was defective, his writ was fair upon its face, and was, therefore, a complete protection to him, on the familiar principle that an officer is justified in obeying any process which appears to be lawfully issued to him, and which on its face apprises him of no legal reason why he should refrain from doing so. Erskine v. Hohnbach, 14 Wall. 613; Bird v. Perkins, 33 Mich. 28; Watson v. Watson, 9 Conn. 140; Lott v. Hubbard, 44 Ala. 593; Hill v. Figley, 25 III. 156; Seekins v. Goodale, 61 Me. 400; Underwood v. Robinson, 106 Mass. 296; Walden v. Dudley, 49 Me. 419; Gore v. Gorden, 66 N. C. 371.

And no doubt the writ in this case must be regarded as fair on its face. Uuder the general law relating to attachments, where the suit is begun by that writ, the affidavit is attached to and in legal effect becomes a part of it, and if then the affidavit is void the writ is void also. But under an amendatory statute passed in 1867, which permits the issue of the writ in pending suits, the affidavit is filed with the clerk, and the officer to whom the writ is issued is supposed to know nothing of it. Comp. Laws, § 6433. It was under the amendatory statute that the writ in this case was issued, and an inspection of its provision shows that the writ contains all the recitals that the statute requires. Comp. Laws, § 6435. But the principle which is appealed to has no application to a case of this description.

The marshal in this case is not seeking to defend himself under his writ; he is endeavoring to assail the title of others. He has not seized goods in the hands of Gates & Marler and confessedly owned by them, but he has taken goods away from Densmore and the Grows to which they assert a title as mortgagees, and is seeking to hold them on the alleged ground that, by virtue of a writ against Gates & Marler in favor of certain of their creditors he is in position to contest the right set up by the mortgagees. Now, if, in point of fact, he has a valid writ of the kind he claims, the marshal, representing the creditors, is in position to attack the mortgage; but if he has no such writ it is no concern of his whether the mortgages are valid or not.

The first step in his justification is, therefore, to show, not a writ merely, but a valid writ, and there can be no valid writ of attachment without a sufficient affidavit. Earl v. Camp, 16 Wend. 562; Parker v. Walrod, 16 Wend. 514, 517; Spafford v. Beach, 1 Doug. (Mich.) 199; Leroy v. East Saginaw, 18 Mich. 233; Watkins v. Wallace, 19 id. 57, 74. The marshal understood this, and endeavored to satisfy the rule by producing a certified copy of the affidavit. Unfortunately the evidence defeated the justification instead of supporting it.

The Circuit Court decided correctly in holding that no ground had been shown for interfering with the possession of the mortgages; and the judgment must be affirmed, with costs.

(The other justices concurred.)

NEW YORK COURT OF APPEALS ABSTRACT.

EVIDENCE-OF

VALUE OF GOODS CONVERTED

WHEN PRICE AT ACTUAL SALE NOT. - Witness purchased partnership property of defendant which was sold in fraud of plaintiff, defendant's partner. In an action in equity by plaintiff against defendant to secure an accounting for his disposition of the partnership property, evidence was offered by defendant to show the net proceeds of such property realized by witness on a subsequent sale as a means of establishing its value. Held, there having been a change in time and circumstances between the sale by defendant and that by the witness, that the exclusion of the evidence was proper. The cases show that the sum paid

for property (Hoffman v. Conner, 76 N. Y. 121; Wells v. Kelsey, 37 id. 143; Smith v. Griffith, 3 Hill, 338; Cary v. Gruman, 4 Hill, 625), or the price at which it sold at public sale (Crounse v. Fitch, 1 Abb. App. Dec. 475; Campbell v. Woodworth, 20 N. Y. 499; Gill v. McNamee, 42 id. 44), may under certain circumstances be given in evidence as tending in some degree to establish its market value. But evidence such as was here offered had no such effect, the articles not being in the same condition as at the time when the defendant became chargeable. Judgment affirmed. Flanagan v. Maddin, appellant. Opinion by Danforth, J. [Decided June 1, 1880.]

MASTER AND SERVANT-MASTER LIABLE FOR INJURY ΤΟ SERVANT FROM DEFECTIVE MACHINERY THOUGH NEGLIGENCE OF CO-SERVANT CONTRIBUTES.—

An engine in defendant's railroad was out of order in many particulars, of which fact defendant's managing officers had notice. Among these defects the throttle valve leaked and the thread upon the screw which served to hold the reverse bar in place and thus controlled the motion of the engine was so worn as to be useless. As a natural and necessary consequence of the defects last mentioned the steam escaped from the boilers into the cylinders when the engine was put in motion causing an injury to plaintiff, who was in the employ of defendant. The engine was furnished with cylinder cocks, which if defendant's engineer had opened them would have allowed the steam to escape, and prevented the accident, but the engineer neglected to open them. Held, that defendant was liable for plaintiff's injury and was not relieved because the negligence of plaintiff's co-servant, the engineer, contributed to such injury. As between plaintiff and defendant it was the duty of the latter to furnish for use in the prosecution of its business good and suitable machinery and keep it in repair. York Cent. R. R. Co., 25 N. Y. 562; Cent. & II. R. R. R. Co., 49 id. 521; & Albany R. R. Co., 53 id. 549; Corcoran v. Holbrook, 59 id. 519. It was also the duty of defendant to furnish for the management of such machinery careful and trustworthy servants, and if these conditions were fulfilled, the plaintiff, though injured by the negligence of his fellow-servant, could maintain no action against their common principal. Coon v. Syracuse & Utica R. R. Co., 5 N. Y. 492. But neither upon principle nor authority can it be held, that the negligence of a servant in using imperfect machinery excuses the principal from liability to a co-servant for an injury which could not have happened had the machinery been suitable for the use to which it was applied. Judgment affirmed. Cone v. Delaware, Lackawanna & Western Railroad Co., appellant. Opinion by Danforth, J.

[Decided June 1, 1880.]

Wright v. New Laning v. N. Y. Flike v. Boston

PRACTICE-ORDER NOT MODIFIED BY OPINION WHEN OPINION MAY BE REFERRED TO FOR EXPLANATION-DISCRETION OF COURT GOVERNED BY RULEGRANTING LEAVE TO PLEAD AFTER JUDGMENT ON DEMURRER.-(1) When an order of the court below expresses the ground upon which the order is put but the expression is coupled with phrases that make doubt, the opinion of that court may be referred to to find what that ground is. Tilton v. Beecher,59 N. Y. 176. But it has been held (Hewlett v. Wood, 55 N. Y. 634), that the order cannot be qualified in its operation and effect by reference to the opinion of the court. The dictum of Grover, J., in Tracy v. Altmyer, 46 N. Y. 598, has not been approved. (2) While cases may be cited in which after judgment on demurrer a motion has been entertained and granted for leave to withdraw the demurrer and put in an answer on the merits (Atkinson v. Bayntun 1 Bing. N. C. 740; Bell v. Wilkinson, 26 Week. Rep. 275), they show that the court has a dis

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