People v. Mav (Colo.).. 838 Rochford, Cook v. (Cal.).. ...... 568 272 Rocky Mountain Ins. & Sav. Inst., 632 Rogers v. People (Colo.).. 638 Rohlfs, Struber v. (Kan.).. 161 Rohm. Simonton v. (Colo.). 679 Rominger v. Bugh (Colo.).. 608 Rominger v. Squires (Colo.).. 71 Rosenthal v. Ives (Idaho)... 638 Rovegno, Levins v. (Cal.).. 843 Rovegno, Levins v. (Cal.). 870 56 Polk v. Butterfield (Colo.).. 216 Pomeroy v. Rocky Mountain Ins. & Salt River Valley Canal Co., Gray 607 Sav. Inst. (Colo.).... 153 Sands, Murray v. (Mont.). 858 Portland & W. V. R. Co. v. City of San Marcial Land & Imp. Co. v. Poutet. Hedderick v. (Mont.)... Powell v. Dayton, S. & G. R. Co. (Or.) Powell v. Willamette R. Co. (Or.)... Power v. First Nat. Bank (Mont.).. 597 Power, United States v. (Mont.).... 639 Saunders, State v. (Or.). 433 Schroeder v. Schmidt (Cal.).. 161 Schwartz v. Cowell (Cal.).. Ramsey v. Pettingill (Or.).......... 439 Rara Avis Gold & Silver Min. Co. v. Ray, People v. (Cal.).... Redewill v. Gillen (N. M.)... Red Jacket Tribe v. Gibson (Cal.).. 127 Scott, Parrott v. (Mont.). 765 Santa Clara M. & L. Co. v. County 665 129 763 .... Page ...... Page 685 264 .... 672 117 306 416 677 655 Superior Court, Baker v. (Cal.).. 206 Smith, Hartman v. (Mont.). Stapleton, San Marcial Land & Imp. .... (Cal.).... 462 511 Sweetman, Hoye v. (Nev.). 504 202 76 699 Territory v. Ashenfelter (N. M.).... 879 730 750 42 Territory v. O'Donnell (N. M.)..... 713 488 State v. Folsom Water Co. (Cal.)... 388 662 491 865 432 53 276 441 Thompson, Rutherford v. (Or.). 382 858 61 835 Tidwell, People v. (Utah).. 638 106 Tipton v. Martin (Cal.).. 244 State, Green v. (Cal.).... 708 Tittel, Cramer v. (Cal.).. 869 684 State, Koester v. (Kan.). 339 Tompkins, Oakland Paving Co. v. (Cal.).. 801 State Investment & Ins. Co., Gulf of Torrence, Mosely v. (Cal.). 430 California Nav. & Exp. Co. v. (Cal.).. Trabant v. Rummell (Or.). 56 Steele, Murray v. (Mont.). Trucks v. Bagley (Cal.). 416 Stevens G. S. & M. Co. v. Mills Tufly, State v. (Nev.).. 835 Tully v. Tully (Cal.).. 246 Stevens, Missouri Pac. Ry. Co. v. Tully, Johnson v. (Ariz.).. 567 (Kan.)... 25 Tuolumne Co. Water Co., Weide 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, llfield v. (N. M.). Struber v. Rohlfs (Kan.).. Stump, Joy v. (Or.).. Page United States v. Williams (Mont.).. 851 Van Campen, Flournoy v. (Cal.)... Walden, Johnson v. (Cal.). . . . Warren v. Robinson (Cal.). 486 Weldon, Brown v. (Cal). 257 Wilcox v. Byington (Kan.).. 826 (Cal.).. 537 Wilkins, Home & Loan Associates v. 723 799 281 Wichita & W. R. Co. v. Fechheimer 423 Willamette R. Co. Powell v. (Or.).. 83 530 705 Williams, Hindrey v. (Colo.)..... 436 810 385 708 74 Warren, Montana Ry. Co. v. (Mont.) 641 415 Zeckendorf, Johnson v. (Ariz.)..... 65 502 Zeehandelaur, Ex parte (Cal.).... 259 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 D. 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 affidavit 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 v.12p.no.1-1 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 dismissed the complaint, and from the decree entered thereon this appeal is brought. The said Yandell did not, however, join in the appeal. 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 them. 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 sums 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 difficult 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 |