The Wheeling daily intelligencer. [volume] (Wheeling, W. Va.) 1865-1903, 1880-12-29
nNExpEuTEp YIcrORY

AN pEExPECTED VICEOhf
For the City In the Attachment salts
against Maxwell and KinE-The Motion
10 Quash the Attachments 0yerruied
by Judge Jackson-Synopsis of the
opinion.
Ever since the suits against Maxwell and
King were argued the opinion prevailed
that the city was whipped, and even cOun.
sci for the city looked down their noses
whea the matter was mentioned. The
case, it will be remembered, was argued
before Judge j. NJ. Jackson, Of the Park
ersburg Circuit, some weeks ago, and was
taken under advisement by the Court.
Yesterday was the day set for the deliver
inc OF the opinion, and the result was
looked forward to with some anxiety on
both sides. II was not until nearly III
o'clock that all the counsel were present.
Jndpe Jackson then took the bench, and
10 a ANAL, but very select audience, pro.
ceeded 10 read the opinion OF the Court.
Before proceeding, however, the Judge re.
marked that he regretted he had not been
able TO give the case the consideration he
would liked 10 have done, as unavoidable
distractions inteEfered with his plans. Fol.
lowing Is a synopsis Of the opinion:
The City Of Wheeling IN ,,uup,,,
John {. Maxwell and Az aud upon attachment
dreW King.
This is a motion made by the defendants
TO ouash the attachment sued out In this
cause on the grounds that the affidavit
upon which the same was Issued aud the
facts stated therein were not sufficient to
authorize the issuing thereof.
Three separate grounds are relied on by
defendants counsel in support OF their
motion.
ment, but it does not set out facts sut-
ficient 10 show an embezzlement, nor does
Il sufficiently describe the defendant as
being persons who can commit embezzle-
ment.
the defendants. The affidavit sets up that
thew are holding different positions and
embezzled the funds, respectively Tor
separately as Secretary and Collector OF
the Gas Company. The variance Is fatal.
Third-The liability Of the defendants
can be only a. cOntracIu, and not e. delicto.
The liability arises from the receipt OF tne
money, and not hy the fraudulent CONVEX
sion OF 1t by the defendants: The action
Is for the money-the affidavit IS Tor
tort, and thjsis fatal TO the affidavit.
We will notice these several grounds in
the order stated. But before doing so II
will be necessary to examine the plead
| iugs themselves. The action is In as
sumpsit. The declaration Is the common
courts. With the declaration the plaintiff
has filed an account stating the several
items OF his claim. This account is headed:
'John L, Maxwell aud Andrew Klpg.
| TO the city Of Wheeling, DR..
FIR mppey belonging 10 the said city, received BY
| YOU. embFzied and irAudulently converted to your
1874. Cash received December 2, 1873 SIS %,
&c DC"
The affidavit FLED in the cause, after re.
citing the preliminary requisites, states
that 1.-THE city Of Wheeling, municipal
corporation, Is Justly entitled TO recover in
said action against the above named de.
fendants, in addition, &C., former attach
meat The further sum OF s. and inter.
est tsetting out the different amounts and
the time from which they bear interest).
Aud that said claim is for money OF said
CITY embezzled by said defendants and
fTauduIently converted 20 their own use,
the same having come into their possess.
| inn by virtue OF the employment OF the
said John L. Maxwell as Secretary, and
the said Andrew King as collector OF the
Gas Works Of said city, an account Of
which is fled as part OF this affidavit, ex-
hibit "a" and identified by the signature
OF the clerk OF the court. And, that the
defendants iraudulently contracted the
debt and incurred the liability for 1rhich
This action is brought. "And, that the ma
terial facts upon which the said plaintiff
relies to show the existence OF the grounds
upon which this application for an attach
ment in this action is based are as follows,
zlz: That during the months OF February
Fl @q. the said John L. Maxwell was sec.
retary and the said Andrew King was the
collector Of the Gas Works, and In the
month OF February, 1877, the said defend
ants did embezzle, &C., 1884 80 OF the
money Of the said city, &C., &c.
This Is all that is necessary to quote
from the pleadings at this time. tits con-
ceded by the parties that by this motion
the defendants admit the truth OF the facts,
hut deny that they are sufficient to au.
thorize the issuance OF the attachment,
and, that therefore It should be Dissolved.
Fi.st-Does the affidavit set out facts
sufficient to show an embezzlement, and
does 1t sufficiently describe The defend
ants as being persons who eau commit an
embezzlement. The court then defined
embezzlement and pointed out the differ.
ence between 1t and larceny, and held
that Il wac not necessary that II should be
set out with all the precision OF special
Epleadiug. The court held that defend
ants were acting for the city in fiduciary
character, and cited the 10Th Sec, chap.
| las o: the code to show that they were
described as being persons who could COM
nit embezzlemeut, expressing the opinion
that the first ground was not well taken.
Second-Tbis is joint action sgainst
the defendants, and it is claimed the slIi.
dayit charges they embezzled the funds
respectively or separately, and In separate
and distinct capacities, and that the
variance is fatal to the affidavit
and attachment. Does the affidavit
bear out the construction II
1t does, then the point Is well taken and
the motion must prevail. The affidavit
charges that "h.y didembezzle and fraud.
uently convert to their own use s. Of
the money OF said city, which came into
heir possession by virtue Of ttsir employ
ment as such Secretary and Collector re.
spectiyely." The Court held thRt,the most
reasonable reading Of the language used
expressly charges joint embezzlepent
and Joint fraudulent conversion by the
defendants, and that there was no vari.
snce In the particular referred to in this
ground. at the words oil the affidavit
are in substantial compliance with the
terms OF, or necessarily and properly i'm.
ply the case provided for by the statute, 1t
viii 30 sufficient. "-Drake on Attachment,
Sc. 100. am Of opinion to override the
motion on this ground.
Third-It Is claimed that the action is
upon contract, and that the affidavit Is
for tort and that this variance Is fatal.
This presents the most serious question
and one that has been pressed with great
force by the counsel for the defendants. !
have examined all the authorities relied
~ and tho cnncluainn I have reachad