The record-union. [volume] (Sacramento, Calif.) 1891-1903, 1895-08-01
IT Was NOT AN INTERSTATE NOTE.
Executed in New York, 1t is Payable
There.
John Mackey and Charles Kerr Gave
the Note, But AresNot Liable to
Attachment Here.

SupSIIOl 0uQS0 SdlAlh Los ldlhCo thS
motion of the defendants. in the case Of
George r. Rosseter against Charles Kerr
and John Mackey, to discharge the at
| tachment issued on April 3. 1894. against
them.
The suit was on q promissory note for
$500, executed by Kerr and Mackey to
Rosseter. The suit was commenced in
San Francisco and transferred to this
county. The affidavit required in such
cases stated. among other things. that
''the contract was made and is payable
in this State" Under this writ certain
personal property was attached and taken
by the Sheriff of San Francisco on the
same day. Afterward, on April 10th, the
Sheriff released the attachment upon the
defendants giving him bond such as is
required in such cases
The motion to discharge the at
tachment was made OH the following
grounds: That the writ of attachment
was issued improperly. wrongfully and
without authority OF law, because the
contract on which the action was brought
was made, executed and delivered and
! to be performed in the State of New
| York, and is a contract governed by the
| law of New York, and there made pay
able, and was not made nor stipulated to
! be paid in the State of California; that the
writ was issued irregularly, because the
undertaking given to procure the lssu-
ance OF the writ of attachment was in
| sufficient and Irregular for the reason that
the liability undertaken and assumed by
the sureties did not satisfy the measure of
| liability required by law. 1t was also
| contended that there was no agreement
| between the parties that the contract
should be paid in California. In his de-
cision, Judge Catlin says:
The motion is supported by the affi
dayits of each Of the defendants, stating
| positively that the note was made and de-
| livered in New York for the purchase Of
| horses at the time of its date. and that no
| agreement was made fer the payment of
| the note in California, and that the sub
ject matter of the place where the note
was to be paid was not mentioned.
Opposed to the motion is the affidavit
Of James w. DAILY, the payee of the note,
to the effect that, though the note was
made and delivered In New York at the
| time of it's date for horses then and there
purchased of him by defendants, yet the
| defendants then and there instructed him
to send the note to California for collec-
ton. and agreed to pay the note in said
State. The af1iant does not mention any
place in California where the note was to
be paid. Mackey and Kerr in further
affidavits in reply to the affidavit of Daily,
both positively deny the statement Of
Daily and reiterate their statements that
nothing was said to the effect that the
note was to be paid in California, and
that nothing at all was said upon the sub
ject as to where the note was to be paid.
Mackey states that DAILY drew up the
note and that both defendants signed it
in the presence of Daily.
1T is at least a singular circumstance
that Daily, if it was understood at the time
that the note was to be paid in California,
did not, with pen In hand, make it so
payable. AS. however. the evidence
strongly preponderates against DAILY in
this regard, it must be held that the note
is payable i'll the State of New York,
whore it was made.
"'Ihe motion is made also upon an
other ground, namely, that the under
taking does not conform With Section
$50, Code of Civil Procedure. The con-
tenton is that this condition limits the
liability of the sureties for mere irregu-
larities in the issuing of the attachment
and that the defendants are not protected
in case judgment is in their favor. The
undertaking agrees that in case the de-
PENDANTS recover judgment plaintiff will
pay all cost and damages if the attach
ment be wrongfully issued.
lit is obvious that an attachment may
wrongfully issue and yet judgment go
for the plaintiff, and if judgment is for
the defendant then the attachment is
wrongfully issued, though it may be in
all respects regular in form. The object
of the statute is to give defendant Sc
curity against suit upon an unjust de-
mand, as we'll as security against an il
legal attachment OF his property upon
Just demand.
LAS the attachment must be discharged
upon the ground first mentioned, to-wit:
that the note was not payable in this
State. it will not be necessary to express
an opinion as to the insuf1icincy Of the
undertaking as a ground alone for dis
charging the attachment
The motion is granted and the at
tachment and the bond given for the re-
lease of the same are vacated and dis
charged"