Nashville union and American. [volume] (Nashville, Tenn.) 1868-1875, 1870-11-26

but it is insisted for Miller G Co. that on
account of defects in the frame of Brooks
8 Bros bin, and in their attachment
bond, their attachment was a nudity.
The frame of the bill is anomalous il
more respects than one, but that which
is most seriously objected to, is, that Nc
Burney Broyles, one of the debtor firm
of McBurney Broyles 6 Co., joins with
Brooks g Bro, in charging fraud upon
the firm of McBurney, Broyles & Co.,. ss
the ground of the attachment. This
singular proceeding is explained by the
allegation, that Asa Bsyless, the other
member of the debtor firm, had already
conveyed his property to his wife and
children, to evade the payment of the
firm debts, and that this act of fraud in
duced his partner, McBurney Broyles, to
fear that he would also convey the real
estate of the partnership for the same
fraudulent purpose. Hence, McBurney
Broyles, to give preference to Brooks &
Bro, who had specially befriended the
firm, Joined in the bill, in the affidavit
and in the attachment bond. Whilst this
proceeding was unusual and anomalous,
we do not see that it could affect the
rights of Brooks s. Bro.
1t is next objected that the names of
the firm of Robert Brooks & Bro, COM
plaInants, and of the several other firms,
creditors of McBurney, Broyles & Co.,
who are made defendants, are not set out
the bill, but that they are made parties
by their firm names. As to the names of
the complainants; Robert Brooks & Bro,
this objection is not well taken, their
names being set out in full in the bill.
As to the other firms made defendants
they were not necessary parties. The
only necessary party was the debtor firm,
OF which Asa Bayless is made defendant
by name. The other firms being creditors
of McBurney, Broyles s. Co., might or
might not be made parties defendant, in
the discretion of the complainants. They
were made parties for their benefit, if
they should choose to avail them
selves of any surplus that might remain
for distribution after compliments claim
should be satisfied. Amongst the
firms, so made defendants, is that Of
Daniel Miller & Co., who filed their at
tachment bill, two days after complain
ants had attached, and then came forward,
make their appearance, as defendants to
complainantss bill, and demur thereto,
because they were made defendants by
their firm name only, and afterwards file
their answer, in which they insist upon
the same objection. Whatever complaint
the other firm, who neither appeared nor
defended, might have reason to make, for
the failure to set out their full names,
surely Daniel Miller s. Co., can have none
on that score, since they appeared and
made this defense. But the omission was
not material as to any of the firm, as they
were not necessary parties.
The next objection is, that in executing
the attachment bond, complainants signed
their name of RObt. Brooks and Bro,
instead of signing the names of the firm,
separately. The signature of Robt. Brooks
& Bro. is followed by scroll, intended
to represent seal. Before granting an
attachment the applicant, his agent or at
torney, is required to execute bond in
double the amount claimed to be due,
and no attachment shall be dismissed for
any defect in; OF want of bond, if the
plaintiff, his agent or attorney, will sub
stitute q sufficient bond; Code S. 9,47l
and 3,477. Constituting these provisions,
literally, as we are required by SAT- to
do, we do not think the defect in the
bond, if any defect, was such as TO render
the attachment nullity, but that upon
the execution of a sufficient bond, which,
by the permission of the Chancellor, was
done in this case, the complainant was
entitled to the full benefit of the lien of
his attachment of the 10th of August,
1865.
We have indicated that we do not re-
gard the bond as really defective, for the
reason that 1t was signedin the firm name
of complainants. The provision in the
Code, 5 1904, that 'the addition of pri-
vate seal to an instrument of writing,
hereafter made, shall not affect its char
acter in any respect" abolishes, so COM
pletely, the distinction between sealed
and unsealed instruments of writing that
we think the signature of the firm name
of Robt. Brooks & Bro. to the bond,
though followed by private seal, was
binding on the firm, and therefore it was
a good bond.
Upon the hearing of the cause, the
Chancellor was of opinion, and so de-
creed, that complainauts were entitled to
the relief prayed for. In this we concur
with him and affirm the decree.
NICHOLSON, C. J.
A true copy.
Test: J, F. DRADERICK, Clerk.