Farwell v. Jenkins

McAllister, J. There being no bill.o.f. exceptions, the offiy questions that legitimately arise upon this appeal, must be upon the action of the court in sustaining the interplea of Jenkins, by overruling the .plaintiff’s demurrer thereto. The first object "on taken here to that plea is that it is not a plea in abatement, but that it traverses the fact’s stated in the affidavit for thp attaehipcnj;, -which, under .the statute, can he dope only -by the defendants ip .the attachment, and by a plea jn ahateme.pt. As the .statute formerly -was, a :plea in -abatement was the.only form in which said traverse.coffid he made. But, as .the-statute is since the-revision, jt is not specially so provided. Section 27 of the .Attachment Act reads : “ Tlie defendant may plead traversing the facts stated in the affidavit upon which -the attachment issued, which plea shall be verified by affidavit.” Perhaps, -by virtue of the provision of section twenty-six, the plea would be, in its nature, a jalea in abatement, inasmuch as its purpose is to quash the writ. That, section declares: “ The practice and pleadings .in attachment suits, except as otherwise provided in this act, shall conform, as near as may be, to the practice and pleadings in other suits at law.” 1 Starr & Cur. Stat. pp, 320-321. So that, where the defendant in the writ pleads traversing the facts stated in the affidavit, it may be that the plea, notwithstanding the change in the words of the statute, would still have to be, in form, a plea in abatement. But the inter-plea under consideration is not controlled by that view. Section 20' of j the Attachment Act, says: “In all cases of attachment, any person, other than the defend mt, clain in ? the property attached, may interplead, verifying his plea by affidavit, etc. Then section eleven of the act concerning voluntary assignments (1 Starr & Cur. 1306) gives the assignee the sam; power over the estate of the assignor as he himself had, at the time of the assignment; power to sue for and recover in the assignee’s own name everything belonging to the assigned estate; power to do whatsoever the assignor might have done in the premises. How, giving to these several provisions a fairly liberal construction with reference to their objects and purposes, as the courts shoulddo, it seems to us entirely clear, that if the defendants in the attachment in this case refused to traverse the facts stated in the affidavit upon which that writ issued, not because those facts were true, but because, by collusion with the plaintiffs, they desired to give them a preference in fraud of the statute, or even without any fraudulent purpose, it was competent for the assignee of those defendants, upon petition to and leave by the court, to intervene by inter plea, setting up the assignment and his title to the property, and for the purpose of preventing the injustice of the property of the defendants in the attachment being wrested from their other creditors, without any foundation in truth and in fact for such attachment, to traverse in the same plea the alleged facts on which that writ issued. Waples on Attachment, p. 480; Bamberger v. Halberg, 78 Ky. 376 ; Davis v. Eppinger, 18 Cal. 377; Speyer v. Ihmels, 21 Cal. 279. While it was competent for Jenkins to come in by inter, plea, yet in the frame of the plea he was, under the provisions of section twenty-six aforesaid of the Attachment Act, subject to the general rules of pleading. He, by his interplea, introduced new matter into the pleadings, viz., the assignment under the statute, by the defendants in the attachment, to him, averring title to the gdods which had been seized under that writ; and the interplea concludes to the country, thus depriving the plaintiffs of opportunity of answering such new matter. That was assigned as special cause of demurrer. Chitty says: “It is an established rule in pleading, that whenever new matter is introduced on either side, the pleading must conclude with a verification, in order that the other party may have an opportunity of answering it.” (1 Chit. Pl. 557.) Bailey v. Smith, 1 Root, 243; Service v. Heermance, 1 Johnson, 91; McClure v. Irwin, 3 Cow. 313. It is the practice in this State, where the interplea sets up a conveyance or title to the property, to conclude the plea with a verification. Laclede Bank v. Keeler, 103 Ill. 425. For the error in overruling the special demurrer of plaintiffs to the inter plea, the judgment must be reversed and the cause remanded. Judgment reversed.