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People v. May (Colo.)..

838 Rochford, Cook v. (Cal.). .... ... 568

People v. McCoy (Cal.).

272 Rocky Mountain Ins. & Sav. Inst.,

People v. More (Cal.)..
631 Pomeroy v. (Colo.). .....

153

People v. More (Cal.).
632 Rogers v. People (Colo.)...

813

People v. Myers (Cal.).
719 Rogers, People v.(Cal.).

679

People v. Olesen (Utah).
638 Rohlfs, Struber v. (Kan.)....

830

People v. Rav (Cal.).
161 Rohm, Simonton v. (Colo.)..

424

People v. Rogers (Cal.).
679 Rominger v. Bugh (Colo.)..

215

People v. Scott (Colo.).
608 Rominger v. Squires (Colo.).

213

People v. Stokes (Cal.).
71 Rosenthal v. Ives (Idaho)...

904

People v. Tidwell (Utah).
61 Ross, Coleman v. (Or.)..

648

People v. Tidwell (Utah).
638 Rovegno, Levins v. (Cal.).

161

People, Rogers v. (Colo.)..
813 Rovegno, Levins v. (Cal.).

343

People's Savings Bank, Chandler v. Rowland v. Madden (Cal.)..

226
(Cal.). .
871 Rowland v. Madden (Cal.)..

870

Perry, Starkie v. (Cal.).

508 Rummell, Trabant v. (Or.).... 56

Peterson v. Weissbein (Cal.). 415 Rush v. Missouri Pac. Ry. Co.(Kan.) 582

Pettingill, Ramsey v. (Or.). 439 Rutherford v. Thompson (Or.)..... 382

Pfefferle, State v. (Kan.)..

406

Phillips, In re (Cal.)..

169 Sabins, Warden v. (Kan.). ......... 520

* Pickett, Losch v. (Kan.)..

822 St. Louis, Ft. S. & W.R. Co. y. Chen-

Plummer v. Brown (Cal.)..
464 ault (Kan.). .....

303

Polk v. Butterfield (Colo.).... 216. Salt River Valley Canal Co., Gray

Pomeroy v. Rocky Mountain Ins. & v. (Ariz.).....

607

Sav..Inst. (Colo.)..
153 Sands, Murray v. (Mont.).

858

Porteous v. Reed (Cal.)..

117 San Juan Silver Min. Co., Kendall

Porter v. Murray (Cal.)..
425 v. (Colo.)..

198

Portland & W. V. R. Co. v. City of San Marcial Land & Imp. Co. v.

Portland (Or.)...
265 Stapleton (N. M.),

621

Poutet, Hedderick v. (Mont.). 765 Santa Clara M. & L. Co. v. County

Powell v. Dayton, S. & G. R.Co.(Or.) 665 of Santa Cruz (Cal.)..

129

Powell v. Willamette R. Co. (Or.)... 83 Saunders, State v.(Or.).

441

Power v. First Nat. Bank (Mont.). . 597 Save, Declez v. (Cal.).

1722

Power, United States v. (Mont.).... 639 Schmidt, Schroeder v. (Cal.). 302

Putnam, Chicago, K. & W. R. Co. v. Schmidt, Ex parte (Cal.)...

55

(Kan.).....
593 Schneider v. Haas (Or.)..

236

Schneider, Hexter v. (Or.).

668

Ramsey v. Pettingill (Or.).
439 Schpied, Murray v. (Mont.).

858

Rara Avis Gold & Silver Min. Co. v. Schooley, Nuzman v. (Kan.). 829

Bouscher (Colo.)..

433 Schroeder v. Schmidt (Cal.). 302

Ray, People v. (Cal.).
161 Schwartz v. Cowell (Cal.)..

252

Rea, Miller v. (Cal.)..
431 Schwartz v. Cowell (Cal.).

253

Redewill v. Gillen (N. M.)..
872 Schwartz, Marx v. (Or.)...

253

Red Jacket Tribe v. Gibson (Cal.).. 127 Scott, Parrott v. (Mont.).

703

Reed v. New (Kan.).
139 Scott, People v. (Colo.).

608

Reed, Porteous v. (Cal.)..
117 Seaton v. Hixon (Kan.). .

22

Reed, Snow v. (Or.)..
636 Seibert v. Baxter (Kan.).

934

Reins, Murray v. (Mont.)..

858 Selby v. City of Portland (Or.)..... 377

Reis, Boys' & Girls' Aid Soc. v. (Cal.) 796. Shenkle, State v. (Kan.).

309

Remnant, Hoffman v. (Cal.).. 804 Shepard, Partridge v. (Cal.).. 351

Reynolds v. Lincoln (Cal.).. 449 Shepard, Partridge v. (Cal.). 480

Richardson, Alhambra Addition Sheridan v. City of Salem (Or.)..... 925

Water Co. v. (Cal.)...

343 Sheriff of Gallatin Co., Territory v.

Richardson, Murray v. (Mont.)... 858 (Mont.). .

662
Riddell v. Harrell (Cal.)..

67 Shipman v. Superior Court(Cal.)... 787
Riddle, Wood v. (Or)..

385 Silver Bow Mining & Milling Co. v.
Ridgway v. Bogan (Cal.),.
343 Lowry (Mont.)...

652
Roach, Atchison, T. & S. F. R. Co. Simms v. Hampson (Ariz.)

686
V. (Kan.)...
93 Simonton v. Rohn (Colo.).

424
Roach, Murray v. (Mont.).. 858 Sleeper, Gilbert v. (Cal.).

172
Robert, Chevrier v. (Mont.). 702 Smith v. Bauer (Colo.}....

397
Robinson v. Kindley (Kan.)..
587 Smith v. Furnish (Cal.)..

392
Robinson, Warren v. (Cal.).. 265 Smith v. King (Or.).

8
Robinson, Ex parte (Cal.).
794 Smith v. Trefry (Cal.).

351
Roche v. Ware (Cal.)....
284 Smith, Fuin v. (Or.)...

365
Page

Page Smith, Hartman v.(Mont.).

655 Superior Court, Baker v. (Cal.)..... 685 Smith, Pelham v. (Kan.)..

557 Superior Court, Gross v. (Cal.). . 264 Smith, State v. (Cal.)....

121 Superior Court, Hall v. (Cal.). . 672 Smoke House Lode Cases (Mont.). . 558 Superior Court, Jaynes v. (Cal.), 117 Snavely v. Abbott Buggy Co. (Kan.) 522 Superior Court, Lang v. (Cal.). 306 Snavely v. Kingman (Kan.). . 526 Superior Court, Lang v. (Cal.). 416 Snavely v. Oyler Manuf'g Co. (Kan.) 526 Superior Court, Luco v. (Cal.). 677 Snodgrass, Pelican & Dives Min. Superior Court, Massman v. (Cal.).. 685 Co. v. (Colo.)......

206 Superior Court, McCue v. (Cal.). ... 615 Snow v. Reed (Or.).

636 Superior Court, Nobmann v.(Cal.).. 869 Souders v. Voorhees (Kan.)

526 Superior Court. Shipman v. (Cal.).. 787 Spangler, McComb v. (Cal.). 347 Swamp Land Dist. No. 307 y. Gwynn Spence, Crogban v. (Cal.)... 719 (Cal.)....

462 Spooner, Gruell v. (Cal.).

511 Sweetman, Hoye v. (Nev.). . 504 Springer v. Young (Or.). 400 Swem v Green (Colo.)...

202 Squires, Rominger v. (Colo.). 213 Swift v. Mulkey (Or.).

76 Staab, Mulvey v. (N. M.)....

699 Stafford, Starks v. (Or.).

670 Tabor v. Armstrong (Colo.)...... 157 Stapleton, San Marcial Land & Imp. Tabor, Armstrong v. (Colo.).... 157 Co. v. (N. M.). . 021 Tait v. Hall (Cal.)..

391 Starkie v. Perry (Cal.). 508 Talent, Murray v. (Mont.)..

858 Starks v. Stafford (Or.). 670 Tarbox v. Sughrue (Kan.).

935 State v. Adams (Nev.).

488 Tarpey, Nicholson v. (Cal.). 778 State v. Baldwin (Kan.).

318 Terpening v. Holton (Colo.). 189 State v. Brayman (Kan.)

111 Territory v. Ashenfelter (N. M.)... 879 State v. City of Topeka (Kan.)., 310 Territory v. Bashford (Ariz.) 671 State v. County of Wabaunsee(Kan.) 942 Territory v. County of Mohave State v. Crutchley (Nev.).. 113 (Ariz.). .

730 State v. Dovey (Nev.)....

910 Territory v. Harding (Mont.). 750 State v. Elrod (Kan.).

42 Territory v. O'Donnell (N. M.). 7.13 State v. Folsom Water Co. (Cal.)... 388 Territory v. Sheriff of Gallatin Co.. State v. Hallock (Nev.).... 488 (Mont.).

662 State v. Hallock (Nev.). 832 Thomas v. England (Cal.).

491 State v. Horn (Kan.).. 148 Thomas, King v. (Mont.)..

865 State v. Hughes (Kan.)..

28 Thomas, Miller v. (Cal.)..... 432 State v. McLaughlin (Kan.) 32 Thomas, Ex parte (Cal.).

53 State v. Pfefferle(Kan.)..

406 Thompson v. Hawley (Or.).. 276 State v. Saunders (Or.), 441 Thompson, Rutherford v. (Or.)..

382 State v. Shenkle (Kan.).

309 Thornton, Murray v. (Mont.)... 858 State v. Smith (Cal.).. 121 Tidwell, People v. (Utah)...

61 State v. Tufly (Nev.)... 835 Tidwell, People v. (Utah).

638 State v. Whitaker (Kan.). 106 | Tipton v. Martin (Cal.)..

244 State v. Wright (Or.)... 709 Tiitel, Cramer v. (Cal.).

869 State, Green v. (Cal.).... 683 Todhunter v. State (Cal.)..

684 State, Koester v. (Kan.).

339 Tompkins, Oakland Paving Co. v. State, Todhunter v. (Cal.).. 684 (Cal.). ...

801 State Investment & Ins. Co., Gulf of Torrence, Mosely v. (Cal.). .

430 California Nav. & Exp. Co. v. Trabant v. Rummell (Or.).

56 (Cal.). . 473 Trefry, Smith v. (Cal.)..

351 Steele, Murray v. (Mont.). 858 Tripp, Greer v. (Cal.)

301 Steele, Walker v. (Colo.). 423 Trucks v. Bagley (Cal.).

416 Stevens G. S. & M. Co. v. Mills Tufly. State v. (Nev.).

835 (Mont.). 858 Tully v. Tully (Cal.). .

246 Stevens, Missouri Pac. Ry. Co. v. Tully, Johnson v. (Ariz.).

567 (Kan.)...

25 Tuolumne Co. Water Co., WeideStevenson v. Moody (Idaho). 902 kind v. (Cal.)...

387 Stokes, People v. (Čal.). 71 Turner v. Donnelly (Cal.)

469 Stoneroad v. Stoneroad (N. M.). 736 | Turner v. Parker (Or.).

495 Stover, Ilfield v. (N. M.). 714 Tyler, In re (Cal.)..

289 Struber v. Rohlfs (Kan.).

830 Stump, Joy v. (Or.).

929 Union Pac. R. R. v. Jones (Colo.).. 516 Stuttmeister, In re (Cal.).

270 Union Pac. Ry. Co. v. Fray (Kan.). 98 Sugbrue. Tarbox v. (Kan.)

935 United States v. Northern Pac. R. Suksdorff v. Bigham (Or.). 818 Co. (Mont.)..

769 Summers, Page v. (Cal.).

120 United States v. Power (Mont.)..... 639

84

Page

Page United States v. Williams (Mont.).. 851 Weldon, Brown v. (Cal)..

280 Urton, Hefner v. (Cal.). ...... 486 Wells v. Neff (Or.).

Wells v. Neff (Or.).

88 Van Campen, Flournoy v. (Cal.).... 257 Welsh, Babcock v. (Cal.).

337 Van Tromp. Beard v. (Kan.). 935, Wheeler v. Fick (N. M.)..

625 Vincent v. County of Umatilla (Or.) 732 Wheeler v. Harrah (Or.)..

500 Voorhees, Clark v. (Kan.)...... 529 Whitaker, State v. (Kan.).

106 Voorhees. Souders v. (Kan.). 526 Whittle v. Doty (Cal.). .

299 Voos, King v. (Or.)......

281 Wichita & W. R. Co. v. Fechheimer (Kan.)...

362 Walden, Johnson v. (Cal.). .... 257 | Wilcox v. Byington (Kan.).

826 Walker v. Goldsmith (Or.).

537 Wilkins, Home & Loan Associates v. Walker v. McCusker (Cal.)... 723 (Cal.).

799 Walker v. Steele(Colo.).

423 Willamette R. Co. Powell v. (Or.).. 83 Walker, Ware v. (Cal.).

475 Williams, Alameda Macadamizing Wallace v. Ah Sam (Cal.).. 46 Co. v. (Cal.).....

530 Wallace v. Mahaffey (Kan.). 705 Williams, Hindrey v. (Colo.).. 436 Warden v. Sabins (Kan.).

520 Williams, United States v. (Mont.). 851 Ware v. Walker (Cal.). . 475 Wilson, Neill v. (Or.).

810 Ware, Roche v. (Cal.)... 284 Wood v. Riddle (Or.)..

385 Warren v. Robinson (Cal.). . 265 Wright, State v. (Or.).

708 Warren, Brooks v. (Utah).

659 Warren, Montana Ry. Co. v. (Mont.) 611 Yates v. Gransbury (Colo.).

206 Weber, O'Keefe v. (Or.).. 74 Young v. Brehi (Nev.).

564 Weidekind v. Tuolumné Co. Water Young, Springer v. (Or.).

400 Co. (Cal.)...

387 Weissbein, Peterson v. (Cal.). . 415 Zeckendorf, Johnson v. (Ariz.). 65 Welch, Haines v. (Or.).

502 | Zeehandelaur, Ex, parte (Cal.). ..... 259

t

THE

Pacific Reporter.

VOLUME XII.

(13 Or. 369)
BANK OF GARFIELD Co. and others v. BINGHAM and others.

(Supreme Court of Oregon. April 26, 1886.) ATTACHMENT-PRIORITY OF LIEN-PROMISSORY NOTES.

Where both the appellants and the respondents procured writs of attachment on promissory notes held by a bank as collateral security for overdrafts drawn upon it by a bank which had failed, the respondents, having first procured their writ, were granted priority of lien, notwithstanding the fact that their original complaint alleged an action of tort in connection with contract; and in their amended complaint the amount claimed in the original complaint, which the attachment was sued out to secure, was enlarged; the facts of the case showing a distinct cause of action on contract, and that the amendment was made in furtherance of justice and

without fraudulent intent. Appeal from Multnomah county.

F. V. Holman, for appellants, Bank of Garfield Co. and others. C. H. Carey, for respondents, William Bingham and others.

THAYER, J. The appellant Suksdorf commenced a suit in the court below against the respondents to have certain attachment proceedings taken by the latter against J. S. Danford and I). Ainsworth, partners under the name of Spokane County Bank, declared fraudulent and void, and to have attachment proceedings he had taken against said parties decreed to have priority over those of the respondents. It appears that the said Danford and Ainsworth, who evidently are a couple of knaves, engaged in the banking business at Spokane Falls, in Washington Territory, and received deposits, discounted notes, and dealt in exchange; that about the seventeenth day of September, 1884, they failed in business, having at the time a large number of promissory notes in the possession of the First National Bank of Portland, Oregon, which were held by the latter bank as collateral security for overdrafts drawn upon it by said Danford and Ainsworth; that on the twentieth day of September, 1884, the respondent Bingham commenced an action in the said circuit court against Danford and Ainsworth to recover various claims on account of certain moneys deposited with them by divers parties which had been assigned to him, said Bingham, and thereupon filed an atislavit and undertaking for the purpose of procuring a writ of attachment to be issued in the said action, and which was thereupon issued by the clerk of said court, and under which said notes were attached; that subsequently to the commencement of the said action, and on the same day it was commenced, the respondents Webber & Foster also commenced an action in the said circuit court against said Danford and Ainsworth on account of moneys deposited by the former with the latter, and also procured a writ of attachment to be issued in their action, under which said notes were also attached. Subsequently, and on or about the sixth day of October, 1884, said appellant commenced an action against Danford and Ainsworth in said circuit court on account of moneys he had deposited with them, and in which he sued out an attachment under which said notes were also attached. The suit was in the nature of a creditors' bill, and was brought on behalf of himself and all others in the same interest who would come in and contribute to the expense of maintaining it, and subsequently the Bank of Garfield County and one F. Yandell, who had similar claims against said Danford and Ainsworth, and who had commenced actions thereon in said circuit court, respectively, and sued out attachments therein, which were also levied upon said notes, came in and were made plaintiffs with said Suksdorf. The attachments in favor of the appellants and Yandell were subsequent to those of the respondents. The respondents filed answers in said suit, and upon the hearing thereof the circuit court disinissed the complaint, and from the decree entered thereon this appeal is brought. The said Yandeil did not, however, join in the appeal.

v.12p.no.1-1

The appellants claim that the respondents were not entitled to have attachments issued in their said actions, for the reason that said actions were in tort, and not upon contract, and that their procurement of said attachment to be issued was a fraud on the appellants' rights in the premises. No attachment against the property of another can legally issue in this state in any action except an action upon contract, expressed or implied, for the direct payment of money, and an attempt to procure the issuance of such process in any other kind of action is unauthorized, and the process, if issued, would be a nullity.

But the respondents' counsel claims that their said actions were not in tort, that they were upon contract, and that they were entitled, under the law, to have attachments issued therein. Under the Civil Code of this state there are no forms of action in actions at law. It expressly abolishes the:n. Their nature and character must therefore be ascertained from an examination of the facts alleged constituting the cause. The original complaint in Bingham's action is not a comely pleading, certainly. It would be difficult to describe its quality. The first count, which is more objectionable than any of the others, alleges, after the introductory part, the following: “And that on the twenty-sixth day of August, 1884, one John Bingham deposited with the defendants $100, to be sent to Sea-board Bank, New York, and $250, to be sent to First National Bank of Portland, Oregon, and that the defendants failed to send said suns to said Sea-board Bank of N. Y., and to the First National Bank of Portland, but converted the same to their own use, to plaintiff's damage in the sum of $350.” It is not easy to decipher what the pleader intended by this. The appellants' counsel insisted that his intention was to claim for a tortious conversion of the money; and that, possibly, may have been his idea. It is ditlicult to conclude what an attorney might mean when he employs such a jargon to express it. There is no possible way of reconciling his statement if the several allegations contained in it are given the full meaning which each imports if separately considered. Depositing the money with a bank to be sent to another bank implies a purchase of exchange. No one would suppose for a moment that the deposit was made with the view that the identical money would be forwarded. The deposit itself would operate to transfer the particular money to the bank, and create the relation of debtor and creditor between it and the depositor, and the alleged breach “that the defendants failed to send said sums” signifies that it was the amount of money deposited, and not the same money that was to be sent. The language is vague and very meager; but, standing by itself and in the light of its surroundings, I think it imports a contract to pay a sum of money in con

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