The Seattle post-intelligencer. [volume] (Seattle, Wash. Terr. [Wash.]) 1888-1914, 1892-07-31
THE MOTION DENIED.
Judse Hanford Refuses to Dis
solve the Attachment
ON THE PORT MADISON MILLS.
=. Action for Damages the Only Re-
..,.e--A woman's Suit to Com
mel Conveyance of Property.

yuaee Hanford, of the United States
.oart. Yesterday denied the motion of w.
s.vward to dissolve the attachments Sc
,nred BIZ Dexter Horton d Co. upon the
por, Madison mills property. The opinion
elad in the case was as follows:
psrte, Horton d Co., q corporation, vs. w. P.
eayward-
denied.
us. Battle & shpley for defendant.
HAyTogD, j.
This action was originally brought in the su-
,var,or court OF King county, and at the time of
Commanding 1t the plaintiff sued out writs of at
..csment directed to the sheriffs of the several
rountjss in which the defendants property was
s.uaied, and hereunder large amount OF
r,onerty. resi- and personal, was attached. The
ssidayjt made and filed in behalf of plaintiff, to
MEET the requirements of the attach ment law,
s,ates Is grounds for the attachment that the
dafendant is a nonresident of this state, and
that he has assigned, secreted and disposed of
his property with intent to delay and defraad
his creditors, particularly the plaintiff. The
defendant now moves the court to dissolve the
attachments, which motion is based upon an
affidavit of al agent having charge
Of all of defendants property and BUSH
ness in this state, showing that the
defendant he's not made any disposition of
nroperty. except lumber and merchandise in
the regular course of business, and certain real
estate and ships, which were only mortgaged to
secure existing debts. The affidavit also SETS
forth the agreement between Harrington &
smith and Herrick, referred TO in the opinion
heretofore rendered oyerruling the Defendants
plea In abatement, and in addition to the facts
alleged in the plea tina. by inducing Herrick to
make payments and By shipments of lumber Is
contelnp plated by said agreement, the defendant
has BY adoption thereof and fulfillments of its
conditions made himself party to said agree
nent and that all payments due hereunder
M TO the date a the commencement of this &C.
.ion we're duly made, out by reason of this suit
and the attachment OF defendants property
said Herriek has been prevented from contlnu-
ing the payments and none have been made
since said date.
From the proofs before me find that the de-
iendant has not made or attempted any fraudu-
lent disposition of his property, nor by reason OF
fraud forfeited the rights secured TO him by the
contract He is, however, a nonresident, and
on that ground his property in this state is sub
ject 10 attachment in an action for debt that Is
past due. But an attachment on this ground is
one OF the things provided against by the con-
tact, according 10 my understanding of it, as
heretofore explained.
! cannot, however, upon the showing made,
legally grant the present motion. The showing
isinsufiicent because instead of standing upon
theletter of his contract, the monthly payments
which the defendant undertook to secure to
Harrington Smith have from the commence
ment OF the action ceased. Enforcement of the
contract by depriving the plaintiff of a statutory
remedy TO which he Is apparently entitled, on
the ground that he has agreed to forbear during
aspecifed period OF time to invoke il, is in
effect equivalent to the granting OF equitable
relief by enforcing specific performance. A
party seeking this form of relief in a court of
equity must as a condition precedent show that
he mas done or offered TO do, or is ready, will.
Ing and able to do all the essential and material
acts required of him in the specific execution of
the contract according TO its terms. The de-
fenasat cannot in a court of law have the full
benefit of the rights and advantages stipulated
for m contract in addition 10 a right of action
ioE any injury done in the past by failure on the
part oil the Plaintiff to observe il, on terms more
favorable than he could claim the same in
equity. Tam Of the opinion that it would have
b.en right and lawful to have granted this mo-
ton II 1t had been made promptly after the al
taehments were issued and before other pay
ments became due, or If the payments
had been continued each month accord
ing to the contract. This court cannot in an
sction al law exercise the powers of chancellor
nor decree that both parties fulfill their prom
ises; 1t can only determine their rights accord
Ing TO xaat has been done. Inasmuch as the
defendant has not lived up to this agreement
himself, Ihold that his only remedy for the
breach OF IL alleged TO have been committed by
The Plaintiff Is to be found in an action for
damages
The motion to dissolve the attachments is