RUMBERGER V. GERS6N.
sequent acts of the plaintiff might be admissible to illustrate the defendant's fraudulent motive and purposes, even though the writs were not ordered by the judge, or, in fact, issued by the clerk for a day or more after the filing in the court of the petition and affidavit. Recurring a moment to the practice, in the mRtter of application for and in the issuance of the attachment writs, we will find that the particular time at which the rule would require the alleged facts must be true, refers to the time at which the affidavit is made by the defendant, rather than to the time at which the writs issue; for it may be, as it often is, that the plaintiff makes the affidavit a day or several days before the judge has an opportunity to grant the order for the issuance of the writs; the judge's order is granted only after the petition and affidavit are presented to him. Having obtained the order to let the writ issue, on the plaintiff's giving bond according to law, the plaintiff in good faith presents his surety, whom he believes to be solvent. The clerk, to whom the law confides the quasi judicial duty of passing on the sufficiency of the surety, may approve or reject the surety; if he approves the surety, the plaintiff has done all that he can do in the matter; if he rejects the surety, the plaintiff may tender another surety. When the clerk takes the surety offered by the plaintiff, who is without collusion with his surety, or knowledge of his insufficiency, the result is to show to all parties, as far as it is practicable, that the bondsman is sufficient in law;' Anterior to the act of 1868 an attachment would not lie for the reasons or on the grounds provided for in that act; then an attachment issued when the debtor resides out of the state, or has left the state permanently; when he is about to leave the state without there being a possibility, in the ordinary course of judicial proceedings, of obtaining or executing a judgment against him previous to his departure. The enlargement of the grounds for an attachment so that it is for the first time, under the act of 1868, made a remedy against the fraudulent acts of a debtor, suggests that the first rule, which was laid down, as it appears, before the remedy by attachment was so extended, should not now, in its literal significance, apply. We must assume that all the fraudulent acts of the debtor in this case existed at the time the affidavit was made. These facts are not denied, but the debtor says, notwithstanding his fraudulent acts, the attachment should fall; that now, plaintiff's only remedy to prevent injury from his fraudulent acts should be denied to him; that plaintiff's only remedy now, to make effectual in his favor, against defendant's fraudulent acts, the common pledge which he, as a creditor, had on his debtor's property, must be denied and taken from him because the clerk approved a bondsman who was not then The plaintiff swears that the fraudulent acts upon which he relies for attachment had occurred before, or they existed at, the time of the affidavit; he does not swear to the sufficiency of the surety at any time.
Considering the facts, which we assume to be true, it does not appear to me that the courts in Louisiana, in laying down the first of the rules herein suggested, meant to treat and consider the matter of the sufficiency of the surety as one of the facts which must necessarily enter into the state of facts existing when the writ issues. If the surety was not then sufficient, why cannot the court now, looking to the interest and rights of both plaintiff and defendant, correct the 'mistake that- the plaintiff made in believing that Allen was a sufficient surety, or the bad judgment of the clerk who justified and approved the bondsman presented in good faith by the plaintiff? As the rule would apply in this case, it cannot be said that it is founded in equity; the conservatory writ in this case, if this rule is inflexible, avails the plaintiff nothing against the debtor who admits his fraudulent purpose to avoid payment. It is not denied that the court should allow the plaintiff, at any time, to give additional security, as the penalty of having his attachment set aside, if the surety, whom the clerk approved as sufficient when he issued the writs, should become afterwards insufficient, and that such a bond will take effect from the date of the original bond. Without deducing from these generalizations the conclusion that the plaintiff in all attachment suits should be allowed to make sufficient a bond that was insufficient at the time the clerk took and approved the bond, we, in consequence of the facts established in this case, do not feel constrained to regard the rule which we have been discussing as so inflexible as to fOllbid the plaintiff to now give additional security rather than to iiissolve the attachment. The proof shows that Allen is worth about $15,000 in such property as the law seems to require; the several bonds which were signed on the same day by him amount to over $20,000. It is not denied that in suit No. 67 Allen is a sufficient surety. In the absence of proof as to the time of the day at which this or that bond was signed, how can the court say at what time, or upon what particular one of these several bonds, Allen's sufficiency as a surety became expended? Can it be said, in the face of these facts, that the rule which seems to require that an attachment should stand or fall upon the state of facts existing at the time it issues forbids the court now to allow the plaintiff to give, if he chooses, additional security? Shall the plaintiff in suit No. 67 be considered as having given sufficient security, and the plaintiff in the some one or more of the other suits, later in number, be told that the bond in his case was signed by Allen at a time when his suffi· ciency was expended and the conservatory writ must prove useless against his fraudulent debtor? The difficulties presented by the facts in this case, in the mind of the court, can be met satisfactorily only by allowing the plaintiff to supplement his original bond by giving additional security in each of the several cases. In a case where we must presume, as we do in this case, that the debtor justly owes the debt, and that he is by his
HANN V. ARKANSAS VALLEY LAND & CATTLE CO.
fraudulent acts, which he does not deny, rendering nugatory ana ineffectual all of the ordinary l'emedies which the creditor might adopt, it cannot be said that the remedy by attachment is a severe or harsh one. The facts in this case, as it now stands before the court, do not Elhow that a severe remedy was adopted by the attaching creditor to enforce the payment of the debt justly due to him. Erstein v. Rothschild, 22 FED. REP. 65. The clerk is ordered to take additional security in each of the several cases.
LAND & CATTLE Co., (Limited.)
June 5, 1885.)
(Circuit Court, D. Colorado.
CONVERSION OF CATTLE-BoNA FIDE PURCHASER-NoTICE.
One who purchases for value and withuut notice, from a stranger, eatlle that have strayed from their range and been taken possession of by such stranger, will be lia hIe for con version if he refuses to delivel' them to their owner on demand made by him.
S.um-MI£AsURE OF DAMAGES.
The measure of damages for such a cOnverSIon will be tIle value of the cattle with their increase to the time of demand, with legal interest thereon from the date of the demand.
The jury may disregard altogether the testimony ot a witness who has willfully and knowingly sworn falsely in respect to any material matter in the caoc.
At Law. R. E. Foote and J!J' ellS, l}Jacon et McNeal, for plaintiff. Hugh Butler, for defendant. HALLETT, J., (chm'ging ju,ry.) There is a great mass of testimony in this case directed to one proposition only: whether the cattle belonging to the plaintiff came into the defendant's possession and were retained by it. It is true that several questions are involved and embraced in this proposition; as (1) the title of the plaintiff to the herd which he claims to have purchased from Schlagel & Jordan in the fall of 1880, and which was branded, as he says, with a bar brand. This is contested by defendant upon the ground that he did not then obtain an absolute title to the property; though it is conceded that he sub· sequently acquired such title. That is a matter which will not require very much attention. The bill of sale which was given by Schlagel & Jordan to the plaintiff at that time, after providing the terms of payment, and the way in which the value of the cattle should be estimated, did provide that the sellers should have and retain possession, or the right of possession, until the cattle should be paid for. This was obviously a security for a deferred payment. Some cattleabout 600-were to be taken to Omaha or Council Bluffs, and there sold for a sum not less than the price specified in the contract, and