from the court below by appeal taken under the provisions of the Code of 1881. The appellees now move to dismiss the appeal, on the ground that an action at law can be brought to this court for re-examination only by writ of error. The motion seems to us well grounded. It is contended by the appellant, however, that the appellees, having filed a brief in the cause in this court, without having given notice of a special or limited appearance, as provided for by rule 17 of the court, are now precluded from taking the objection.

The appellees in their brief call attention to the nature of the acion, and to the character of the process by which the action is brought to this court, and before addressing themselves to the merits give the following notice:

"And appellees here give notice that they will move the supreme court to dismiss the appeal, for the reasons stated, which motion will be filed on or before the second day of the July term, 1885."

We think the notice thus given a sufficient compliance with the rule of the court in question. The appellant and the court are notified, contemporaneously with the filing of the brief, that the appellees intend to insist upon the objection to the jurisdictional process. This is what the rule was intended to accomplish. The notice thus conveyed is not in the form usually employed to limit to a special appearance what would otherwise amount to a general appearance, but form, while useful and proper to be observed, is not considered essential. The appeal is dismissed.

WRIT OF ERROR-CERTIFYING TRANSCRIPT-FILING BRIEF.

Writ of error dismissed, because the transcript was not well certified to the supreme court as a complete transcript, and because the brief of plaintiff in error was not filed within the time prescribed by supreme court rule 10.

Error to First district.

Thos. C. Griffiths, for plaintiff in error.

GREENE, C. J. This cause comes on to be heard upon the printed brief of plaintiff in error, defendant in error not appearing. Looking into the transcript we find it is not well certified to this court as a complete transcript. For this reason the writ of error must be dismissed.

There is also another ground for dismissal, namely, that the brief of plaintiff in error was not filed within the time prescribed by rule 10 of this court. Dismissed, at costs of plaintiff in error.

HOYT and TURNER, JJ., concur.

(2 Wash. T. 412)

E. C. MEACHEM ARMS Co., a corporation, v. SWARTZ and others.

FRAUDULENT CONVEYANCE

TO SET ASIDE.

Filed July 24, 1885.

- BILL BY ATTACHING CREDITOR BEFORE JUDGMENT

A bill to enjoin the foreclosure of a chattel mortgage, and to set it aside as a fraud on the mortgagor's creditors, may be maintained by an attaching creditor before judgment

Foster & Houghton and Binkley & Taylor, for appellants, E. C. Meachem Arms Co., a corporation.

Nash & Kinnaird, W. N. Murray, and M. T. Harlson, for appellees, Elizabeth L. Swartz and others.

WINGARD, J. The appellants brought an action in the district court (Fourth district) against Emanuel L. Swartz, and an attachment was issued and levied upon his stock in trade at Spokane Falls, Spokane county, Washington Territory. Swartz had previously executed and delivered to his wife, Elizabeth L., a chattel mortgage, purporting to cover all his property, and said Elizabeth L. had commenced proceedings to foreclose said chattel mortgage when the attachment was levied. The sheriff was in possession of the mortgaged property. Appellants applied to the district court and obtained an injunction restraining the mortgagee, sheriff, and all others from foreclosing said mortgage, and setting up that the mortgage was fraudulent and void, without consideration, for the use and benefit of the mortgagor, and that it was a scheme and contrivance entered into between Swartz and his wife to hinder, delay, and defraud his creditors; that the property mortgaged was all the property owned by Swartz, and that if the same was sold upon foreclosure the appellants would be without remedy to collect their claim; and they prayed that the injunction be made perpetual, and the mortgage be declared void and not a lien. Separate answers were filed by the appellees, but both, either by express admission or a failure to deny, admit the making and attempt to foreclose the mortgage; admit the attachment by plaintiffs; admit the debt due from Swartz to them; and that he had no other property subject to execution, as set forth in the complaint. Strong, Hackett & Co. consented to be made parties plaintiff, and it was so ordered by the court. When the cause came on for hearing the appellants moved for judgment on the pleadings, which motion was overruled. The appellees then moved to have the bill dismissed, whereupon the plaintiffs below asked leave to file a supplemental bill alleging that since the filing of the original bill they had prosecuted their suit to final judgment. This leave was denied by the district court. The bill was then dismissed by the court, to which action of the court the appellants excepted.

It is contended by the appellees that the bill for injunction, etc., being a suit in equity, could not be maintained to set aside a fraudulent mortgage by an attaching creditor before judgment. We think the

appellants had a right to file the supplemental complaint, which they asked leave to file under section 114 of the Code of this territory, and had this been done the contention of the appellees in this regard. would have been eliminated. Moreover, the jurisdiction of the district court to entertain the bill for injunction is expressly given by section 1997 of the Code. "Fraud is one of the primary subjects of equity jurisdiction." Equity does that which right and reason, and good faith and good conscience, demand in the case. If the appellants in such a case as this should be obliged to await their judg ment at law, the law would furnish no adequate remedy,-reason would be disregarded and right annulled. Hahn v. Salmon, 20 Fed. Rep. 801; Robert v. Hodges, 16 N. J. Eq. 299; Heyneman v. Dannenberg, 6 Cal. 376, 380; Ward v. McKenzie, 33 Tex. 316; Perkins v. Fourniquet, 55 U. S. (14 How.) 314; Drake, Attachm. § 225; Bump, Fraud. Conv. 524; Williams v. Michenor, 11 N. J. Eq. 520.

Let the judgment of the district court be reversed, and the cause remanded for further proceedings.

GREENE, C. J., and HoYT, J., concur.

(2 Wash. T. 466)

COOMBS v. DAVIS and another.

Filed July 23, 1885.

GARNISHMENT-NOTES AND CONTRACTS HELD AS SECURITY BY GARNISHEE-ORDER TO DELIVER TO SHERIFF-CODE WASH. T. §§ 182, 183.

Where a garnishee admits that he holds certain notes and sewing-machine contracts, payable in futuro, which have been indorsed and delivered to him by the principal defendant, but claims that they were transferred to him as security for a loan made by him to the defendant, and the evidence leaves the bona fides of the transaction in doubt, it is error for the court to make an order requiring the garnishee to deliver the notes and contracts to the sheriff to be collected by him, and the proceeds to be applied to the satisfaction of any judgment that might be recovered against the principal defendant, and the residue to be returned to the garnishee; but the court should require the garnishee to turn the notes and contracts over to the sheriff, upon being paid the sum for which they were held as security.

T. J. Anders, for appellant, Mary E. Coombs.

Allen, Crowley & Thompson, for appellees, A. L. Davis and another. TURNER, J. The appellant, as garnishee in the case of A. L. Davis & Son v. W. L. Coombs and others, pending in the district court for the First judicial district, holding terms at Walla Walla, was required to appear before the judge of said court at chambers, as provided by section 182 of the Code, to answer concerning property in her possession, or under her control, belonging to the defendants, or either of them, or in which they, or either of them, had any interest. Upon the examination before the judge which followed, the appellant admitted having in her possession notes and sewing-machine contracts to the amount of over $5,000, which had been indorsed and delivered to her by the defendants, as security for the sum of $3,500, which

she testified she had loaned them on September 28, 1883. In response to questions, upon the direct and cross-examination, she made a detailed statement of facts for the purpose of showing the manner in which she acquired the large sum claimed to have been loaned by her to the defendants, who were her husband and sons, and concerning her and their relations with the plaintiffs and their family. This detailed statement was not consistent in every respect, and tended very strongly to impeach the bona fides of the transfer to her of the notes and machine contracts. Upon this state of facts the judge below made an order requiring the garnishee to deliver the said notes and machine contracts to the sheriff, the same to be collected by him, and the proceeds to be applied to the satisfaction of any judgment that might be recovered by plaintiffs against defendants, and the residue to be returned to the garnishee. The garnishee excepted to this order.

The cause is here under the appeal act of 1883, and the appellant, the garnishee, assigns said order as error. Section 182 of the Code, after providing for the examination of garnishees in attachment proceedings before the court or judge, or a referee, continues:

"The court or judge may, after such examination, order personal property capable of manual delivery to be delivered to the sheriff, on such terms as may be just, having reference to any liens thereon, or claims against the same, and a memorandum to be given of all other property, containing the amount or description thereof."

It was not intended by this section of the Code to establish an adversary proceeding in which the title to property in the hands of a garnishee, and claimed by him, might be disputed and litigated. The right of the court or judge in such a proceeding depends entirely upon the admissions of the garnishee. If he admit the property in his hands to be the property of the defendant, free from claim on his part, the court may order the delivery of the property to the sheriff to answer any judgment that may be recorded against the defendant. If he admit the property to be that of the defendant, coupled with a claim or lien against it in his favor, the court or judge may still order the property delivered to the sheriff on such terms as may be just, having reference to the claim or lien of the garnishee. The proceeding is one to probe the conscience of the garnishee by an examination under oath, when his unsworn memorandum, provided for by section 183 of the Code, proves unsatisfactory to the plaintiff, and in the nature of discovery in aid of the right of action against the garnishee, given by section 181 of the Code. This construction is reasonable, and it obviates grave constitutional questions which any other construction would require to be met.

From these views it follows that the order of the judge in the proceeding below was in excess of his authority. Upon the case as made there was only one order that would have completely and certainly protected the rights of the garnishee. That was to require her to turn the notes and contracts over to the sheriff upon being paid the sum

for which she held the same as security. The sewing machine contracts, as we understand them, are contracts by third persons to pay the defendants money at a future time. Extreme diligence is required in the collection and enforcement of demands such as these notes and contracts are; and as the garnishee is not protected by bond, it would be unjust to require her to stand idly by and rely for their collection upon the exertions of a third person. As to some kinds of property, an order requiring the delivery of the same to the sheriff, and making proper provision for the satisfaction of the prior lien of the garnishee out of the money received from the sale of the same, would doubtless be just. As to property of the character of that in controversy such an order is not just, as that term is used in the statute.

The order of the court below is reversed, and the cause remanded for further proceedings.

GREENE, C. J., and HoYT, J., concur.

(2 Wash. T. 362)

PARKER V. D'ACRES.

Filed July 14, 1885.

APPEAL-ACT WASHINGTON TERRITORY 1883-SUPREME COURT RULE 5-FAILURE TO SERVE COPY OF ASSIGNMENT OF ERRORS.

Where an action at law is appealed to the supreme court under the provisions of the act of 1883, and plaintiff in error fails to serve a copy of the assignment of errors on the adverse party within 20 days after the entry of the mo tion for appeal in the journal of the district court, as required by supreme court rule 5, the appeal will be dismissed.

Error to First district. Motion to dismiss appeal.

A. E. Isham, for plaintiff in error.

B. L. & J. L. Sharpstein, for defendant in error.

GREENE, C. J. This cause has been brought here under the provisions of the appeal act of 1883, which allow all cases, of whatever jurisdiction, to be taken to this court by the simple service of a notice of appeal given and entered in the lower court. The uniformity of mode of procedure prescribed by that act does not do away with the essential distinctions between causes at law and causes in equity for purposes of review. Rule 5 of this court, in view of these distinctions, and to facilitate the business of the court, and to harmonize the appellate practice under the act of 1883 with that under the Code, has provided, in substance, that in all law causes brought up under the act of 1883 an assignment of errors shall be made in writing, and filed with the clerk of the proper district court, to be certified to this court as a part of the record, and that a copy of such assignment shall be served on the adverse party within 20 days after the entry in the journal of the district court of the notice of appeal. Plaintiff in error did not serve a copy of assignment of errors in this cause within the time limited, and on that ground defendant in error moves to dis