In Special Term,

June 1854 —

Gholson, J. presiding.

#### NORTHERN BANK of KENTUCKY *v.*NASH & GUILD.

There are instances where on motion by the defendant, the Court will discharge an attachment as to a part of the property attached; but the burthen of showing that a particular piece of property should be discharged, is upon the party applying.

The right to discharge on motion, must be limited to cases where defendant shows an interest in the motion, and is prejudiced either by the granting, or by the operation of the attachment.

Where, however, a motion is made to discharge an attachment, on the ground that it was wrongfully obtained, no question, as to the interest of the defendants in the property attached, will prevent a full inquiry into the correctness of the grounds on which the attachment was predicated.

Though a defendant may move to discharge a part of the property attached, on the ground of excessive levy, or exemption by law, he cannot by this method raise a question as to the extent or nature of his title.

*Query,*whether an equitable interest may not be attached under the Code?

This case was before the Court, on a motion to discharge an attachment as to a certain lot, levied on as the property of the defendant, Charles Guild.

Ferguson and Long for the motion. King, Anderson, and Sage, contra.

*154Gholson, J.

The order of attachment in this case, was issued on two grounds, stated in the affidavit of the cashier and agent of the plaintiff. The motion to discharge is made upon affidavits, procured on the part of the defendant Guild, who makes the motion, and is resisted upon affidavits on the part of the plaintiff. I have looked through the affidavits upon both sides, to satisfy myself whether upon the statements and facts presented, it was proper that the order of attachment should be retained, and it appears to me that the plaintiff is entitled to the benefit of the order of attachment.

This point does not seem to be contested by the counsel for the motion, who limit their application^ to the exemption from the operation of the attachment, of a certain piece of property, and tacitly admit, that the attachment ought to stand good, as to any other property levied on, or as the foundation for the proceeding against the garnishee. The attachment, then, having properly issued, the question whether any particular piece of property shall be withdrawn from its operation, is, to my mind, a very different question, from that, which would arise, on the propriety of the attachment itself, and should be decided on different considerations. The burthen of showing upon a motion of this kind, that a particular piece of property should be discharged from the attachment, and the apparent security for his debt obtained by the plaintiff, divested from him, is, unquestionably, on the party applying, and, in my opinion, such showing should be clear and satisfactory. Several instances may be supposed, in which a defendant, not contesting in its entirety the right of the plaintiff to an attachment, might, yet, very properly ask, that a part of the property be discharged.

*155Although the language of the Code, Section 228, is general, that the defendant may “move to discharge an attachment as to the whole, or a part of the property, attached,” the right to a discharge must be limited to the cases in which the defendant shows an interest in the motion, and is prejudiced either by the granting, or by the operation of the attachment.

When a defendant moves to discharge an attachment, on the ground that it has been wrongfully sued out, I should not be inclined to permit any question, as to his interest in the property levied on, to operate, to prevent a full enquiry into the correctness of the grounds, on which the attachment was predicated. In such a case, his interest is clear, for the motion is directed against the foundation of an attachment against all his property. But, when, by the form and object of the motion, and the facts shown, it appears, that the defendant can really have no interest in the matter, cannot be benefitted by the granting, nor prejudiced by the refusal of the motion, and the only effect would be to decide, in a summary manner, a matter of contest between the plaintiff and third persons, which decision would be in no way obligatory on them, and might seriously prejudice the plaintiff, I do not think there is a proper case for the action of the Court.

The question as to the title or interest of the defendant, in respect of its being legal or equitable, appears to fall within the same objection. Although it may be, that under our former Attachment law, an equitable interest could not be attached, I can find no instance, in which such an objection was ever raised by motion. A defendant may be permitted to move to discharge a part of the property attached, on the ground that there had been *156an excessive levy, or that the property was exempt by law, but I do not see the propriety of raising in this way a question ms to the nature or extent of his title.

Independent of this objection, I would not discharge property from an attachment on a mere motion, on the ground that the interest of the defendant was an equitable one, unless I was clearly satisfied, that under the Code such an interest could not be reached by attachment. Upon looking at, and comparing Sections 191, 194,198, 207, 210, and particularly Section 221 of the Code, it would be difficult to say, that the remedy by attachment had not been extended in respect of the nature and description of the property, which may be attached.

I strongly incline to the opinion, that an equitable interest in real estate may now be the subject of attachment; but it is not necessary to decide that question, as the plaintiff, in my opinion, is entitled to have it brought forward in a regular form, and in such shape, that the decision will be obligatory on all the parties interested.

In accordance with these views, the motion will be overruled.

*163Mills & IIoadly for plaintiffs. T. D. Lincoln for defendant.