the goods to the defendant or to his agent; and the sheriff and his sureties are responsible to the owner of the goods for their value in case he fails to do so, or in case he turns them over to some person not authorized to receive the same, although, by misapprehension, he, the sheriff, believed that such person was the agent of the defendant: Levy v. McDowell, 45 Texas 220, 226.

10. Security for indebtedness.-Omission of statement.-An affidavit for attachment is insufficient where it proceeds to follow the language of the statute and omits one of the important elements which the statute provides that it must contain. Under this rule, it has been held that where the statute provides that the affidavit shall state, among other things, that the indebtedness or demand "has not been secured by ⚫ any mortgage or lien upon real or personal property, or any pledge of personal property," an omission of the provision that the debt was not secured by "any pledge of personal property," or any substantially equivalent expression, is fatal to the affidavit: Knutsen v. Phillips, 16 Idaho 267, 101 Pac. 596, 598.

11. A contrary, and perhaps a better, doctrine than that declared upon in Knutsen v. Phillips, 16 Idaho 267, 101 Pac. 596, is that a declaration that the affiant has no lien upon personal property is sufficient to negative all possibility of his having a pledge; for if he had any pledge of personal property, he must have had a lien upon it: Glidden v. Whittier, 46 Fed. (C. C.) 437; O'Connor v. Witherby, 112 Cal. 38, 44 Pac. 340.

12. Interest not required to be stated. -It is not a material objection to an affidavit for attachment that it does not state the amount of interest due upon plaintiff's demand, where the principal sum is stated: Wright v. Ragland, 18 Tex. 289, 292.

13. Defense of estoppel in relation to attachment proceedings.

[Title of court and cause.]

[It has been held that the following paragraphs in an answer set forth facts by averment sufficient to constitute an estoppel if established on the trial, and that therefore it was error to sustain a demurrer thereto: Ashley v. Pick, 53 Ore. 410, 100 Pac. 1103.]

[After introductory averments the answer proceeds:]

(5) That afterwards, to wit, on the 1st day of May, 1907, in a civil action for recovery of money then pending in the justice court, Portland District, Multnomah County, state of Oregon, wherein D. H. Smith was plaintiff and said A. J. Parrington and Olive Parrington, his wife, were defendants, a writ of attachment was duly issued, commanding the constable of said district, of the personal property of said defendant to attach and safely keep to satisfy the demands of plaintiff in said action, together with the costs and expenses thereof. That under and pursuant to said writ all the property described in said complaint, and so received by this defendant, was duly attached and levied upon as the property of said defendants in said action. That afterwards, and on the 6th day of June, 1907, said court having jurisdiction over said defendant and the subject-matter of said action, rendered a judgment therein in favor of plaintiff, and against said defendant, and all of said attached property was by the order of said court directed to be sold to satisfy said judgment. That, pursuant to such order and judgment of said court, the constable of said district did on or about the 22d day of June, 1907, take from the possession of this defendant all of said personal property, and pursuant to said judgment and order of sale, after having duly advertised the same, sold all said personal property to satisfy the judgment so rendered by said court in such action against said defendants, A. J. Parrington and wife.

(6) Further answering, defendant avers that he had no knowledge or any information of any sale, assignment, or transfer of the receipt so issued by him for the personal property so received from said A. J. Parrington and wife, prior to the said 27th day of July, 1907, and long after the attachment levy upon and sale of said personal property; that said plaintiffs knew and were well aware that all of said personal property was so attached and levied upon as the property of said A. J. Parrington and wife, and was being advertised and sold as such; that the place of business of plaintiffs is in the same vicinity as that of defendant, and, during all the while said property so sold under attachment was being advertised and sold to satisfy the judgment against said Parrington and wife, the said plaintiffs, being

fully advised thereof, acquiesced therein, and did not then or ever prior to such sale make any claim of ownership or of any interest in said personal property, or cause any information to be given to this defendant that they had or claimed the same, or any interest therein; that solely by reason of such acquiescence of plaintiffs in the proceedings then being had to subject said property to the payment of said judgment, and the lack of any knowledge or information that plaintiffs claimed said property or any interest therein, this defendant took no appeal from the order and judgment of said court directing the sale of said property, or any steps to enjoin the constable of said district from taking possession of said property under said writ, and this defendant alleges that, by reason of the acquiescence of plaintiffs on such levy and sale of said property, the plaintiffs are now estopped from making claim thereto. [Prayer.] John M. Gearin, Attorney for defendant.

[Verification.]

14. Intervention is uniformly allowed in favor of the owner of attached goods: Letchford v. Jacobs, 17. La. Ann. 79; Dennis v. Kolm, 131 Cal. 91, 63 Pac. 141; Potlatch L. Co. v. Runkel, 16 Idaho 192, 101 Pac. 396, 398, 23 L. R. A. (N. S.) 536; Taylor v. Adair, 22 Iowa 279.

15. One who claims to be the owner of attached property, or to have a lien on it by mortgage, attachment, or otherwise, is entitled to intervene in an action where the property has been attached as being the property of another party: Potlatch L. Co. v. Runkel, 16 Idaho 192, 101 Pac. 396, 398, 23 L. R. A. (N. S.) 536.

16. If intervention were not allowed in favor of the owner of attached property, it would seem that it would be necessary for the owner to prosecute his action to remove the cloud of the attachment, unless the plaintiff in the action should voluntarily relinquish his claim. It is for just such a case, and for the purpose of preventing circuity and multiplicity of actions, that the statute authorizing intervention by strangers was enacted: Potlatch L. Co. v. Runkel, 16 Idaho 192, 101 Pac. 396, 398, 23 L. R. A. (N. S.) 536; Pittock v. Buck, 15 Idaho 47, 96 Pac. 212; Pence V. Jury's Pl.-108.

Sweeney, 3 Idaho (Hasb.) 181, 28 Fac. 413; Gold Hunter M. & S. Co. v. Holleman, 3 Idaho (Hasb.) 99, 27 Pac. 413.

17. A Junior attaching creditor may Intervene in the action of a senior attaching creditor for the purpose of testing the validity of the first attachment: McComb v. Reed, 28 Cal. 281, 87 Am. Dec. 115; Coghill v. Marks, 29 Cal. 673; Stich v. Dickenson, 38 Cal. 608; Kimball v. Richardson-Kimball Co., 111 Cal. 386, 43 Pac. 1111; McEldowney v. Madden, 124 Cal. 108, 56 Pac. 783.

18. Texas practice as to intervention. -Under the Texas practice, a third party, as owner or claimant of the property attached, may not intervene in the same case for the purpose of asserting his right, for the reason that, in such cases, the subject-matter of the suit is the debt to be collected, and the ownership of the property is in no way put in issue by the pleadings in the case, and therefore forms no part of the subject-matter of the action: Williams v. Bailey (Tex. Civ. App.), 29 S. W. 834; Rodigues v. Trevino, 54 Tex. 198; Meyer v. Sligh, 81 Tex. 336, 16 S. W. 1022.

19. Interplea in attachment.-An interplea under the statute requiring that any person before the sale of attached property, or before the payment of the proceeds thereof to the plaintiff, may present his verified complaint to the court disputing the validity of the attachment or stating his claim to the property or an interest therein, must be read in connection with the code sections which say "no objection shall be taken after judgment to any pleading for want of, or defect in, the verification": Burke v. Sharp, 88 Ark. 433, 115 S. W. 145, 148, citing Ark. Civ. Code, §§ 159, 257, and Kirby's Digest, §§ 391, 6152, 6182.

20. Judgment against a garnishee can not lawfully be rendered until judgment has been rendered against the defendant in the main action: Norman v. Poole, 70 Ark. 127, 66 S. W. 433.

21. But where that judgment has been rendered, and can not be enforced on account of failure to comply with the statutes, such failure should be set up by the garnishee as a defense: St. Louis etc. R. Co. v. McDermitt, 91 Ark. 112, 120 S. W. 831, 833.

c3 Arkansas, § 6354, substantially same as sub. 2, Cal. C. C. P. § 564.

d Colorado, C. C. P. § 179. A receiver may be appointed by the court in which the action is pending, or by a judge thereof, or, pending proceedings in the supreme court upon appeal or writ of error, by the court from whose final judgment such appellant proceedings are prosecuted, or by the judge of such court: First, before judgment, provisionally, on application of either party, when he establishes a prima facie right to the property, or to an interest in the property, which is the subject of the action, and which is in possession of an adverse party, and the property, or its rents and profits, are in danger of being lost, or materially injured or impaired. Second, after judgment to dispose of the property according to the judgment, or to preserve it during the pending of an appeal; and third, in such other cases as are in accordance with the practice of courts of equity jurisdiction.

e Idaho, § 4329, substantially same as Cal. C. C. P. § 564, except in the opening passage in line two after "pending" insert "or has passed to judgment." (Amended Mch. 5, 1909, Session Laws 1909, p. 26.)

of

f lowa, § 3822. On the petition either party to a civil action or proceeding, wherein he shows that he has a probable right to, or interest in, any property which is the subject of the controversy, and that such property, or its rents or profits, are in danger of being lost or materially injured or impaired, and on such notice to the adverse party as the court or judge shall prescribe, the court, or, in vacation, the judge thereof, if satisfied that the interests of one or both parties will be thereby promoted, and the substantial rights of neither unduly infringed, may appoint a receiver to take charge of and control such property under its direction during the pendency of the action, and may order and coerce the delivery of it to him. Upon the hearing of the application, affidavits, and such other proof as the court or judge permits, may be introduced, and upon the whole case such order made as will be for the best interest of all parties concerned.

Kansas, § 5149. A receiver may be appointed by the supreme court, the district court, or any judge of either, or in

the absence of said judges from the county, by the probate judge:

[Subs. 1 to 6, inclusive, substantially same as Cal. C. C. P. § 564.] (Amended Mch. 12, 1909, Laws 1909, p. 329, C. C. P. § 266.)

h Minnesota, § 4262. A receiver may be appointed in the following cases:

1. Before judgment, on the application of any party to the action who shall show an apparent right to property which is the subject of such action and is in the possession of an adverse party, and the property, or its rents and profits, are in danger of loss or material impairment, except in cases wherein judgment upon failure to answer may be had without application to the court.

2. By the judgment, or after judgment. to carry the same into effect, or to preserve the property pending an appeal, or when an execution has been returned unsatisfied and the judgment debtor refuses to apply his property in satisfaction of the judgment.

3. In the cases provided by law, when a corporation is dissolved, or is insolvent or in imminent danger of insolvency, or has forfeited its corporate rights; and, in like cases, of the property within this state of foreign corporations.

4. In such other cases as are now provided by law, or are in accordance with the existing practice, except as otherwise prescribed in this section.

1 Missouri, § 753. The court, or any judge thereof in vacation, shall have power to appoint a receiver, whenever such appointment shall be deemed necessary, whose duty it shall be to keep and preserve any money or other thing deposited in court, or that may be the subject of a tender, and to keep and preserve all property and protect any business or business interest intrusted to him pending any legal or equitable proceeding concerning the same, subject to the order of court.

1 Nebraska, § 6816. A receiver may be appointed by the supreme court, or the district court, or by the judge of either, in the following cases: First, in an action by a vendor to vacate a fraudulent purchase of property, or by a creditor to subject any property or fund to his claim, or between partners or others jointly owning or interested in any property or fund, on the application of any party to suit, when the property or fund is in danger of being lost, removed, or