The herald., 1897-02-19

! tract upon which the payee could sue
out a writ of attachment.
After the motion to dissolve the at
! tachment was made, and while it was
| pending for decision after submission
| the plaintiff asked and obtained leave lo
amend the complaint. The amended
complaint as filed states cause of action
to recover payment for the same goodS,
but the contract set forth is not an open
account arising from the original pur-
chase and sale, but an account stated
between the parties at subsequent
I date. And by the statement Of the ac-
count as alleged, 1t appears to have
been dated at Los Angeles, from which
circumstances presumption arises that
it is both made here and payable here.
And it is expressly alleged that it was
made here. Upon this amended COM
plant the plaintiff now claims that he is
entitled to the attachment as of the date
of it's original issuance, in other words,
that the motion to dissolve the attach
ment should be denied because, although
he was not entitled to the writ under
the original complaint he would be en-
titled to have an attachment under the
complaint as amended. An attachment
will not be dissolved where the COM
plant does not state cause of action
il it appears that 1T may be susceptible
of amendment so as to state good
cause of action. and one wherein an at
tachment Is allowed by the statute
But this rule obtains because it suffi
ciently appears that if the plaintiff had
properly stated his cause of action in
his complaint in the first instance he
would then have been entitled to an at
tachment; not because he has two con.
tracts to pay one debt and has mad
vertently sued on the one wherein an at
tachment is not allowed, but because he
attempted to state the one in which X
all
the facts necessary to constitute
cause of action thereon. There is clear
distinction between the two cases. In
the one he has right to an attachment.
and it is by mere misprision that he
has failed to state it perfectly
In the other case he has stated his
cause Of action perfectly, but it is one
upon which no attachment can be is
sued 1t is true that he has another con-
tract for the same debt, and this other
contract being made and payable in
this state carries with it the right 10
attachment in q suit upon 1t. This sec
ond contract being for the same debt,
and simple amendment Of the com
plant being a matter which cannot
prejudice the defendant of itself, the
amendment will he allowed and will
relate back to the commencement of thu
action for all purposes of obtaining tho
judgment thereby.
In the case Of Pope VS., Hibernia In
surance company GA Ohio ST.. 4S4) it is
held that where an attachment is issued
upon a cause Of action which is not Of
any class upon which the statute al
lows an attachment to issue. the attach
ment is invalid. and that if. after the
levy of the attachment the complaint
be amended so as to state a cause Of
action upon which an action is author
lied. such amendment cannot make
valid what before was void
THE motion in this case is to dissolve
the attachment which has been issued
and that is the writ issued at the time
the original complaint was filed 1t
results from the reasons stated that this
writ was improperly issued and that it
should be dissolved The motion will
therefore be granted"