#### Whitney and others vs. Brunette.

Proceedings by attachment are special and statutory, and the statute must he substantially if not strictly and exactly complied with, to give the court or 'officer issuing the writ jurisdiction.

An affidavit for an attachment under chap. 112, R. S. 1849, which stated only that the defendants were indebted to the plaintiffs in a specified sum, without stating that the sum was *Am,*or that any sum was due “ over and above all legal set-offs,” was so defective in substance as to render void the writ of attachment issued upon it.

A writ of attachment under the statute of 1849, which did not contain any direction to the sheriff to *summon*the defendants, as required by section 4 of chap. 112, was void.

If a void writ can be helped at all by amendment, the amendment should be allowed effect only as between the parties to the proceeding, and not so as to cut off *mtermeAiate*rights acquired by *ihiri*persons.

*62The title of one who purchases without fraud from a defendant in attachment, goods which '■'have been seized under a *void*writ, will not be affected by the ^act a motion was subsequently made by the attachment defendant to dismiss the writ, and that the court overruled the motion and allowed the wri to be amended.

Paine, J., held that a void writ of attachment was a nullity and could not be amended, and that if a decision of the court from which the void attachment issued, overruling the defendant’s motion to set aside, was binding upon *Mm,*it was not because the court had jurisdiction to issue the attachment, but because, having jurisdiction over him after he had appeared and submitted that question to the court, its decision made the matter *res adjudicate*asto him.

Dixon, 0. J., thought it was not necessary in this case to decide upon the power of the court to amend the attachment proceeding, or asto the conclusiveness upon the parties to that suit, of the order of the court overruling the defendant’s motion to quash the writ; and declined to consider those questions.

ERROR to tbe Circuit Court for *Milwaukee*County.

Most of tbe material facts in tbis case are stated in tbe opinion of the court. Tbe attachment in favor of *Morrow*against Christie & Co. was issued by tbe clerk of tbe circuit court of Brown county, December 7, 1850, and delivered to tbe sheriff, Brunette, who made return, that on that day be attached tbe interest of tbe defendants in certain lumber, and on tbe 9th and 10th of December their interest in certain other lumber, caused it to be appraised, &c., and served a copy of tbe writ and inventory upon Brunquest, one of tbe defendants in tbe attachment, and that service of tbe writ was accepted by tbe other defendants. On tbe 25th of January, 1851, Brunquest moved tbe court to set aside tbe writ of attachment, on tbe ground that it did not command *the*officer to summon tbe defendants as required by tbe statute, and was not made returnable at any term of the court, and was void on its face. On tbe 11th of August, 1851, tbe plaintiff in tbe attachment moved for leave to amend tbe writ by inserting in it a command to tbe sheriff to summon tbe defendants to answer tbe plaintiff by a day and at a place therein to be specified, and to make return of tbe writ. Then follow, in tbe record, these entries: “August 18, 1851. Defend: ant Brunquest moved to set aside tbe amended writ in tbis cause, because plaintiff does not, in tbe affidavit annexed to tbe original writ, [state] that tbe defendants are indebted to him in any sum over and above all legal set-offs.” “ 18th *63August, 1851. The several motions filed in this cause being now argued and by the court here fully understood, it is considered and adj udged by the court that the motion to dismiss be overruled, and that the motion to amend be allowed * * and that the writ be amended and be made returnable of the fourth Monday of March, 1851.” On the same day the writ was amended in pursuance of the motion and order. On the 1st of March, 1852, Brunquest filed a traverse of the affidavit on which the attachment issued, and the" plea of *non assumpsit.*In May, 1852, the cause was removed to Marquette county for trial; and in March, 1860, the plaintiff in the attachment recovered judgment against the defendants for $11,829 65. Whitney, who claimed all the lumber in controversy under a sale to him by Brunquest, commenced an action of replevin for it in the the U. S. District Court, in February, 1851, and the marshal replevied the principal portion of the lumber and delivered it to *Whitney.*The replevin • suit was dismissed by the district court for want of jurisdiction. For that taking of the lumber, the present action of trespass was brought *by. Brunette,*for the use of Morrow, against *Whitney*and the sureties on his bond in the action of replevin. Verdict and judgment against the defendants.

*Finches & Lynde*and *Smith &*Salomon, for plaintiffs in error :

1. The affidavit upon which the writ of attachment in favor of *Morrow*against Christie & Co. was based, was defective, because it did not “ specify the amount of indebtedness *over and above all legal set-offs’’ {Elliott vs.*Jackson, 8 Wis., 649, 653-4; *Wilson vs. Arnold,*1 Cooley (Mich.), 98, 104), nor whether the contract was express or implied, nor definitely whether the debt was upon a contract of any kind (7 Wend., *490;*3 Corns., 41; 4 Hill, 498; 3 Wis., 649, 653-4; 7 Barb., 253); nor did it allege that the debt was *due.*2. The writ of attachment was void. There is no direction in it to summon the defendants or to return the writ. This was essential (R S. 1849, chap. 112, sec. 4), and without it the paper was no writ. 3. The paper was not amendable, for there was nothing to amend. *Bunn vs. Thomas,*2 Johns., 190.; *64*Burle vs.*Barnard, 4 id., 309; 5 N. H., 229 ; 13 Pick., 90 ; 9 386; 2 Band., 1; 1 Monroe, 146; 4 Cow., 49 ; 2 Pennington, 632; 4 Barn. & Aid., 288; 1 Bac. Abr., 240; 1 Str., 399 ; 2 Black. R, 846; and see 3 N. H., 70; 18 Wend., 675; 15 id., 301. The statute bad prescribed the form of the writ, and any other must be void. 4 Chand., 93; 2 Doug., (Mich.), 498, 507 — 510, and authorities cited for defendant; 1 Texas, 17. In the case at bar, an amended writ was filed by leave of the court, but this could not make the void paper and void service good, as was held in Michigan, where the statute of amendments in such cases was broader than ours. 2 Doug., *supra.*The amended writ was never served. 3. The property was therefore not lawfully seized by the officer under the writ, and a lawful seizure was indispensable to enable him to maintain trespass, at least against *Whitney,*who has color of title. 4 Chand., 12; 1 id., 29; 3 Wis., 307-10, 636-40 ; 2 Gibbs, 418; 1 Cooley, 98; 6 Wheat., 119, 127; 6 Wis., 59 ; 16 Wend., 514.

*T. O. Howe,*for defendant in error:

The writ of attachment was not void, and the defects in it were *amendable,*and have been amended upon the order of the court having jurisdiction of the writ. R S., 1849, chap. 100, sec. 1; 1 Cow., 38 ; id., 141; id., 309 ; id., 413. Cases are cited on the other side, where courts have refused to amend the writ of *capias adres,*as to the return day, but they were under statutes different from ours as to amendments, and rest upon a reason peculiar to themselves. That writ, if defective as to the return day, is held void *“*for the danger of long imprisonment by delaying to return process to which the defendant might have a good defense.” 1 Cow., 38; 2 Ld. Raymond, 775 ; 3 Wils., 341; *Parlcevs. Heath,*15 Wend., 301. But under our statute every kind of process, except the *capias ad res.,*may be amended in any respect; even that writ may be amended in any respect except as to the return day, and may be amended as to that, unless the defendant has been arrested. R S. 1849, chap. 100, secs. 1 and 3 ; *ParJce vs. Heath, vhi supra.*2. But if the amendments were made improperly, they were *actually*made under an order of the court, and that order is not a nullity, and binds all parties *65and privies. The Christies, who were not before the court, may not be bound by it, but Brunquest, who was before court, and Whitney, who claims under him, are bound by it until it is reversed. So much seems to be conceded by the court in the case cited on the other side from 13 Pick., 90. See 6 Yt., 509; 4 Bibb, 508; 4 Rawle, 273; 9 Serg. & R, 12; 6 Watts, 398; id., 492 ; 6 Pick., 483. 3. But the ease of *Morrow vs. Qliristie & Co.*has gone into judgment of a court of general jurisdiction, and when the judgment is offered in evidence, it will be presumed that the court which pronounced it had jurisdiction, especially as the law gave it jurisdiction of the writ and of the subject matter of it. If it be objected that two of the defendants were not served with process, the answer is that the defendants were sued as joint debtors, and service on all was not necessary to bind the joint property (R S., chap. 124, sec. 11); much less was service on the Christies necessary to bind Brunquest, who was in court, and Whitney, to whom he sold. 4. It is objected that the writ was void because the affidavit was defective.. (1.) The affidavit was good. This was decided by the circuit court for Brown county in that very case, upon the motion of Brunquest himself, who was the vendor of the plaintiff *Whitney,*and is therefore *res adjudicata.*That court undoubtedly had jurisdiction of that motion, and the decision binds the parties and privies. *Swiggart vs. Harber,*4Scam., 364; *Warlurton vs. Álcen,*1 McLean, 460; *Voorhees vs.*Banlc, 10 Peters, 449 ; *Toland vs. Sprague,*12 id., 300 ; *Granger vs. Clark,*9 Shep., 128. (2.) But if the sufficiency of the affidavit were an open question, this court would hold it sufficient. The statute under which the writ issued was remedial. Sedg. on Stat., 41; Dwarris on Stat, 478. Remedial statutes should be favorably construed to advance the remedy. Dwarris, 632; Cowp., 382, 391; 3 Dow, 15; 2 Ohio St., 431; 9-Johns., 147; 3 Corns., 479; *White vs. Carpenter,*2 Paige, 217 — 229. If the words of the affidavit are in substantial compliance with the terms of the statute, or necessarily and properly imply the' case provided for by it, it is sufficient. 11 Barb., 520; 7 Miss., 452; 8 Ala., 171; 6 How. (Mich.), 254; 12 Sm. & M., 723 ; 1 Ala., 199 ; 19 Gra., 84; *Parmelee vs, Johnson,*15 *66*^8*’ ’ Bank of Ala. vs. Berry,*2 Humph., 443 ; *Flower Griffith, 12 La.,*345; Drake on Att., § 106. (3.) But if were defective, and if *Whitney*and bis grantor were not estopped by the adjudication of the circuit court, neither the writ nor the execution of it is necessarily to be held void. If justice requires it, the proceedings may be amended by annexing a new affidavit. R. S. 1849, chap. 100, secs. 1 and 3 ; 1 Burrill’s Pr., 97; Drake on Att., § 113; 1 Hill, 204; 19 Wend., 632 ; 20 id., 673; Locke on Foreign Att., 5; 6 Yt., 479.

March 15.

*By the Court,*

Paine, *J.*

This was an action of trespass for taking lumber. It appears that the lumber had been cut by Christie & Co. upon the lands of the United States, and it was seized by the Marshal of the United States and sold by him, under the direction, as it was claimed, of the proper authorities at Washington. At the sale it was bid off by Brunquest, one of the firm of Christie & Co., who immediately contracted to sell it to the defendant *Whitney,*the latter advancing the money paid to the marshal. The bill of sale was made by the marshal to Brunquest, and very soon afterwards he-executed a bill of sale to *Whitney,*but notun-til the lumber had been attached in a suit commenced by Elisha Morrow against Christie & Co. *Whitney*afterwards re-plevied the lumber from the sheriff in a suit commenced in the United States District Court, which was afterwards dismissed for the reason that the property was taken from the custody of the sheriff, and it was for that taking, under the writ of replevin, that this suit was brought by the sheriff.

Many exceptions were taken on the trial, and many questions discussed by counsel in this court, but the conclusion to which I have arrived upon the principal question, that is, the validity of the attachment itself, will render it unnecessary for me to consider any other. It is clear from the evidence that at the time the marshal’s sale was made, the attaching creditor, as well as the parties concerned, considered the sale valid. *Whitney*supposed he was acquiring title through that sale, and Morrow’s anxiety to get his attachment served after the sale to Brunquest, and before the latter could *67convey to *Whitney,*which, purpose was evidently aided by the marshal, shows that he aimed at seizing the interest Brunquest acquired through that sale. ,

But that idea is now abandoned by his counsel, who say that no authority was shown for the marshal to seize and sell the property in behalf of the United States, and this being so, although the evidence proves it to have been cut upon the lands of the United States, still it must be treated as the property of Christie & Co., in whose possession it was found, until some valid assertion of the right of the government. And therefore it is said that the attachment would hold it as the property of Christie & Co. I think this court very clearly intimated, when the case was formerly here, that this position could not be sustained, and that if it was shown that the title to the property was really in the United States, that would be a defense to this action, whether the marshal had any authority to sell it or not. 3 Wis., 635-6. But without determing whether or not this theory is correct, I may say that it appears to me entirely immaterial in this case. For whether the lumber at the time of the sale by Brunquest to *Whitney,*was his individual property, acquired through the sale by the marshal, or was the property of Christie & Co., it was equally liable to attachment by the creditors of the company, and equally liable to sale by himself. So in either case the decision turns upon the validity of the attachment. Was it valid or invalid ? It is not difficult to see that the preliminary proceedings upon which it was issued were not in compliance with .the statute in force at that time. Indeed, the counsel for the plaintiff would hardly contend that they were. The affidavit is substantially defective. The statute, B,. S., 1849, chap. 112, required the affidavit to state the amount of the indebtedness *“*over and above all legal set-offs.” Section 3 expressly provided that no writ should be issued, “ unless the *amount stated m such affidavit,*as due to the plaintiff, *over and above all legal set-offs,*shall exceed the sum of one hundred dollars.”

The affidavit in this case simply states that the defendants are indebted to the plaintiff in the sum of five thousand dollars, without saying “ over and above all legal set-offs.” *68For aught that appears there might have been set-offs enough extinguish the entire claim. The statute also requires ^e affidavit to state that the *“*debt is- *due*upon contract express or implied.” This affidavit does not state that the debt is *due*at all. That these are material defects is too clear for argument. .

The writ itself was also defective, in not containing any direction to summon the defendants, as required by section 4; and it was so held by this court, 8 Wis., 633, without determining however whether it was absolutely void. But according to the uniform current of authorities upon this subject, I understand that such defects render the writ void. The proceedings by attachment are special statutory proceedings, and the statute must be substantially, if not strictly and exactly complied with, to give the court or officer issuing the writ jurisdiction. The following are a few of the many authorities that might be cited, sustaining this position. *Quarles vs.*Robinson, 1 Chandler, 31; *Greenvault vs. Bank,*2 Doug. (Mich.), 508; *Buckley vs.*Lowry, 2 Gibbs, 418; *Wilson vs. Arnold,*1 Cooley, 98; *Thatcher vs. Powell,*6 Wheat., 127; *Shivers vs. Wilson,*15 Har. & *J.,*130; Drake on Attachments, § 4 *et seq.*

There is one class of statutes upon the subject of attachment, which allow certain officers to issue the writ when they are satisfied by affidavit of certain facts. Another class allows the writ to issue only upon affidavit stating certain facts. This distinction is noticed in Drake on Attachments, § 86. In the former class it is said that the action of the officer is partly judicial, but in the latter merely ministerial. And it is obvious that a defect in the jurisdiction must be more readily ascertained in the latter than in the former, for the reason that its much easier to see whether the affidavit states the facts required, than to see whether the officer was satisfied of those facts.

Where the officer is required to be satisfied of the facts, it has been held that if the affidavit contains some proof of every essential fact, though slight and insufficient, yet the officer has jurisdiction, and the writ if issued will not be void. But if there is a total defect of proof upon any essential *69point, tben tbe writ would be void. *Staples vs.*Fairchild, 3 Coms., 41.

But our statute belonged to that class which did not require any judicial action of the officer, but allowed the writ to issue only upon an affidavit stating specifically certain facts, and by all the authorities, when such affidavit fails to state every material fact, the writ is void.

But it is said that the defect might be amended, and that it was subsequently amended by leave of court. I think several answers may be made to this position.

It is true, the statute of amendments- then in force was very broad and liberal. It provided that the court in which any action was pending, might “ amend any process, pleading or proceeding in such action, either in form or substance, for the furtherance of justice,” &c. But I think this relates only to such defects as do not render the process absolutely void. There must be something to amend, and a void writ is a nullity. To amend in such a case would be to create the writ anew, giving it a retroactive effect. *Bunn vs. Thom*as, 2 John., 190; *Burk vs.*Barnard, 4 id., 309; *Bell vs. Austin.,*13 Pick., 90; *Garner vs. Van Alstine,*9 John., 386; 4 Cow., 49; *Myles vs. Ford,*2 Rand., 4.

But a further answer is, that even if a void writ can be amended, yet no sufficient amendment was made. The writ itself was amended by inserting a return day and a direction to summon the defendants, but the amended writ was never served; and no amendment at all was made to the affidavit. This, as I have already attempted to show, was so fatally defective as to render the writ void ; and even if an amendment might relate back so as to help a seizure of property before the amendment, yet if such amendment was not made, the writ must remain void.

A still further answer is, that if a void writ can be helped at all by amendment, it should only be allowed that effect as between the parties to the proceeding, and not so as to cut off intermediate rights acquired by third parties. *Witte vs.*Meyer, 11 Wis., 300, and cases cited.

But it is claimed that this matter is *res*adjudícala, for the reason that Brunquest subsequently made a motion to set *70aside the attachment on account of these defects. But the defendant *Whitney*was no party to that suit, and if the attachment was void, it was as though there had been no attachment. The property was just as liable to be sold by Brunquest as though it had not been taken by the sheriff. And if he did sell it, in the absence of fraud, the purchaser would acquire a good title, or any other creditor might have seized and held it upon a valid writ; and if other rights did thus intervene, they could not be barred by a subsequent motion made by Brunquest in a suit to which they were not parties.

It is true that privies, as well as parties, are bound by a judgment. But I do not understand that rule to go so far, as to hold purchasers bound by subsequent litigation in respect to the property between their vendors and others. Privies, within the rule, are those who subsequently to the litigation succeed to the rights of the parties. And here, if the decision on the motion made by Brunquest to set aside the attachment, is to be placed on the same footing with a judgment, then the making of that motion was the commencement of the litigation for that purpose, and the decision ought to conclude only those who succeeded to Brun-quest’s rights afterwards.

But I think the true answer to this position is, that the decision of a court, in a proceeding of which it has not jurisdiction, that it has jurisdiction, does not give it jurisdiction. This would be readily admitted in most cases. Suppose an action brought before a justice of the peace, over which, by law, he had no jurisdiction. Suppose the record showed a motion made to dismiss the action for that reason, which was overruled by the justice, would that give him jurisdiction, or prevent the validity of the judgment from being ques-' tioned collaterally ? It seems to me clearly not. And I suppose the same is true of the decision of any other court, where its want of jurisdiction is conceded. Upon any other principle,-the decision of any tribunal not having jurisdiction, in favor of its jurisdiction, would give its judgment equal validity with that of a court having jurisdiction. The question in every such case is, Was there juirsdiction? and not Did the court assuming to exercise it, decide that there *71was? And the power to decide upon its jurisdiction is not the very jurisdiction in question. For every court bas power, and if that gave it jurisdiction, it would be the duty of every court in all cases to decide in favor of its own jurisdiction, for the very power to decide at all on the question would show that it bad the jurisdiction, which is an absurdity. If therefore the decision refusing to set aside the attachment was binding upon Brunquest, it was not because the court actually had jurisdiction to issue the attachment, but because, having j urisdiction over him after his appearance, and he having submitted that question^to the court, its decision made the matter *res adjudicate/,*as to him. And in speaking of the question of jurisdiction, I refer, of course, only to the attachment, the j urisdiction of which is entirely distinct from that of the suit to recover the judgment against the debtors. The court had undoubted jurisdiction over the latter. And if the defendants were served with process or appeared, the court would have complete jurisdiction, for the purpose of rendering a judgment, without reference to the validity of the attachment. But to render this valid, so as to give the officer any such right to the property as to enable him to sustain this action, the statute must be complied with. As this was not done, I think the attachment was void, and the judgment should be reversed.

Dixoít, C. J.

I agree that the judgment below must be reversed, and concur with Justice PatNe upon the principal points in decision; but as to others which he discusses and apparently sanctions, and which I do not deem necessary to a determination of the case, I wish to withhold my assent.

I agree, for the reasons stated, that by the course of decisions in this state, the writ of attachment was void, and that the defendant in error acquired no lien upon the property by virtue of his supposed levy under it. This being so, I think ■ it unnecessary to decide whether the court in which the action was pending, could amend so as to make it valid between the parties from the beginning, or whether the defects were cured by the subsequent appearance and proceedings on the part of Brunquest. Grant that the court possessed *72anc^ ProPerty exercised tbe power of amendment, or tbat Brunquest is now concluded by bis appearance, and tbe judgment of tbe court upon bis motion, from questioning tbe validity of tbe writ, still I am of opinion tbat those circumstances can have no influence upon tbe rights of tbe plaintiffs in error, who were strangers to tbat proceeding. I think, therefore, tbat the'questions made upon them are unnecessary to a full determination of tbe present controversy, and tbat they cannot properly be considered. Tbe writ being void, it is obvious tbat *Brunette*was, in tbe first instance, as against Brunquest, qf what is tbe same, Christie & Co., or whosoever else may then have bad tbe actual possession of tbe timber, a mere wrong-doer in seizing it; and tbat as between him and tbe person dispossessed, bis possession was tortious and wrongful, and so continued until the injury was waived by tbe person lawfully entitled, or tbe defective process cured. It was as if be bad taken tbe lumber unaided by anything in tbe semblance of legal process. Tbe seizure was a naked trespass, for which he was at once liable to an action by tbe person whose possession be invaded. And it is immaterial which of tbe several parties to tbe transaction then bad tbe possession, whether Brunquest alone, Christie & Co., or the marshal. It was clearly with one of them. Christie & Co. cut and manufactured the lumber upon tbe lands of the United States; the marshal, claiming to act by authority of tbe latter, seized and sold it to Brunquest, who was a member of tbe firm; Brunquest sold it to *Whitney.*Tbe sale to *Whitney*was for a valuable consideration, and made after tbe seizure by Brunette, and while be was in possession, but before tbe writ was amended and before Brunquest bad appeared in tbe action. This is putting tbe case in tbe most favorable attitude possible for Brunette. Two questions then arise: Did *Whitney*acquire a legal right to tbe property as against *Brunettel*Was it competent for Brunquest, by his subsequent conduct in tbe attachment suit, to change *Whitney's*legal relations? Viewing *Brunette*in tbe light of a mere trespasser, tbe answer to tbe first becomes very easy. His wrongful possession constituted no obstacle to a sale by Brunquest. Tbe formalities *73prescribed by the statute of frauds being complied with, actual delivery was unnecessary to pass the title. therefore acquired a valid title, legal or possessory, to the property as against Brunette, unimpeachable, except for fraud, by the creditors of Brunquest or of Christie & Co. And here I may observe that it is a matter of no importance whether the marshal was authorized to sell or whether he was not. If he was, *Whitney*acquired the absolute legal title, good against all the world; if not, then the possessory title of Christie & Co., the original holders, which was good against all but the true owners — the United States. This possessory title Brunquest, as a member of the firm of Christie & Co., had authority to convey. In the one case *Whitney*combined in himself both the legal and possessory titles; in the other he had the possessory title; and which, is immaterial, since, either, except it be impeached for fraud, is a sufficient answer to the claim of *Brunette,*who in no way connects himself with the title of the United States. Eor the purpose of testing his claim, the right of possession acquired through Christie & Co. is to be regarded in all respects equivalent to the legal title.

I answer the second question in the negative. I do not think it was competent for Brunquest, by his subsequent appearance and conduct in the suit, to change *Whitney's*legal relations to the property. He might waive objections and cure defects so far as it concerned himself, or perhaps Christie & Co.; but he could not affect or impair the previously vested rights of *Whitney.*These were independent of his acts or consent, and must be determined upon the facts as they existed at the time he purchased. If then his title was perfect, nothing which afterwards occurred without his knowledge and consent can be permitted to divest it. Brunquest could act for and bind himself, but he had no authority to bind his yendee. ■ The doctrine of relation, so often and so justly applied between parties to actions, by which subsequent acts are carried back to the commencement of the suit, is inapplicable here. The intervening rights of purchasers and others, lawfully acquired, cannot be thus undermined and destroyed. If they could, very great *74injustice would, be tbe consequence. The parties to the suit might combine to effect the fraud. "Whether *Whitney*had notice of the attachment does not appear. The inference is that he had not. In such cases the injustice of giving a retroactive effect to the subsequent proceedings, and holding him bound by them, is very apparent. But if he had actual notice he might still purchase. It could only have been urged as a circumstance strongly indicating that the transaction was fraudulent as to creditors. Hence we need not inquire into the power of the court to amend before Brun-quest appeared, or the conclusiveness of the order denying his motion to quash. Upon neither of these questions am I now prepared to assent to the views expressed by Justice PAINE. However they may be determined, we must still go behind them, and look to the position of the parties as they were when the sale was made.

This view of the rights of *Whitney*is sustained by many adjudged cases. Like questions have frequently arisen between different attaching creditors of the same debtor, where the senior writ has proved defective and void. It has invariably been held in such cases that the junior attaching creditor, whose writ is valid, has precedence; and that too, though the attachment debtor may have appeared in the first action and waived defects, or confessed judgment, before the court is called upon to decide the controversy between the creditors. The junior attacker may move to set the senior writ aside. *Gardner v.*Hust, 2 Rich., 601; *Walker v. Roberts,*4 Rich., 561; *Barnet's Case,*1 Dallas, 152; *Kennedy v.*Baillie, 3 Yeates, 55. The same rule prevails in Massachusetts, where the senior attaching creditor will not be permitted to amend his writ or change his cause of action to the prejudice of a subsequent attaching creditor, or if he does, his attachment is vacated. *Fairfield v. Bald*win, 12 Pick., 388; *Denny v.*Ward, 3 id., *199; Price v. Jackson,*6 Mass., 242. And in New York, where void judgments are sometimes allowed to be amended and perfected, *nunc pro tunc,*it is never permitted so as to interfere with the rights of other judgment creditors, which may in the meantime have attached. *Lawless v. Hackett,*16 John., 145; *75*Davis v. Morris,*21 Barb., 152; *Johnston v. Fellerman,*13 How., 21; *Von Beck v. Shuman,*id., 472. “This has no right,” says Judge HARRIS'In. the last case, “ to authorize a new judgment to be entered under the form of an amendment, which shall take priority over other judgments subsequently recovered.” And it makes no difference that the judgment debtor acquiesces or makes no objection ; the judgment will still be vacated at the instance of the junior creditor. *Plummer v. Plummer,*7 How., 62; *Schoolcraft v. Thompson,*id., 446; *Chappel v. Chappel,*2 Kern., 215. If the courts will so carefully inspect and control their proceedings and judgments to protect the rights of intermediate judgment and attachment creditors, they certainly cannot fail to do so to guard those of an intervening purchaser for value, whose claims stand upon a much more solid foundation.

For these reasons I concur in the judgment of reversal.

Judgment reversed, and new trial awarded.