delivery." It probably refers to the same instruments mentioned in section 648, "for the payment of money only, negotiable or otherwise." It appropriately includes all instruments like bonds, notes, bills of exchange, and certificates of deposit, the title to which may pass by delivery, and do not require a formal assignment in order to enable the person to whom the instrument is delivered to maintain an action upon it in his own name. Upon the rule, noscitur a sociis, the words, "other instruments for the payment of money," are to be interpreted as referring to instruments of similar character with bonds and promissory notes, such as are evidences of debt, and the title to which passes by delivery merely. But there is also fair reason to contend that the provision is intended to include all other instruments which are unilateral contracts for the payment of money only. The apparent purpose of the provision is to require the sheriff to reduce the property attached to his possession so far as, under the circumstances, it can practically be done. This is the rule which prevails in the absence of statutory direction. In general, to constitute a sufficient attachment of personal property, the officer must take such custody of it upon a levy as will enable him to retain and assert his power over it, so that it cannot probably be withdrawn or taken by another without his knowing it. Hemmenway v. Wheeler, 14 Pick. 408; Tomlinson v. Collins, 20 Conn. 364; Odiorne v. Colley, 2 N. H. 66; Blake v. Hatch, 25 Vt. 555; Learned v. Vandenburgh, 7 How. Pr. 379.

When a unilateral instrument, containing the promise of another to pay money, is in the possession of the defendant himself, or, belonging to the defendant, is in the possession of a third person, it is practicable for the sheriff to take it into his actual custody, and the Code provision would seem to require him to do so.

In accordance with these views, the referee was correct in his conclusion that the attachment was not levied, as the statute directs, upon the policies of insurance. But a certificate of membership in an incorporated or unincorporated association cannot, upon any reasonable theory, be considered as an instrument for the payment of money, within the meaning of the provision in question, and consequently the interest of the defendant in the demand against the National Benefit Society was properly attached by the sheriff.

It is insisted for the defendant that the demand of the defendant against the National Benefit Society was in the nature of equitable assets, and therefore could not be attached. Although an attachment is a special remedy at law, and, in the absence of statutory authority, does not reach property or interests which can only be realized by the assistance of a court of equity, the tendency of legislation in this country has been to enlarge the operation of the writ, and subject interests and kinds of property to seizure under an attachment which are not subject to execution at law. Drake, Attachm. § 7. In this state the common law and equity jurisdiction are blended in the same tribunal, and there is consequently no inconvenience in extending the remedy of an attachment so that the levy will embrace equitable interests of the defendant in real and personal property. The question is whether this has been done by the provisions of the Code. No decisions of the state courts have been cited by counsel in which the precise question now presented has been considered. But in Thurber v. Blanck, 50 N. Y. 80, the court of appeals, in considering the effect of an attachment under the Code then existing, in which the provisions were similar to those of the present Code, were of the opinion that the lien of an attachment upon choses in action and debts could only be created upon legal titles, and not upon mere equities. The court used this language:

"Debts and choses in action are to be regarded as legal assets under the attachment laws, wherever that process acts directly upon the legal title; but, whenever they are so situated as to require the exercise of the equity powers of the court to place them in that situation, they must be treated as they always were, -as equitable assets only."

See, also, Castle v. Lewis, 78 N. Y. 135, and Anthony v. Wood, 96 N. Y. 180.

The question thus considered, although not the exact question here, involves somewhat the meaning of the Code provisions, and the consideration whether they extend the lien of an attachment so as to operate upon choses in action which can be collected only in a court of equity. These citations seem to sustain the defendant's contention, and it is significant, as tending to the same conclusion, that the causes of action arising upon contract mentioned in section 648, which are specifically enumerated in the section, are all of them causes of action at law. The conclusion, therefore, is that the Code provisions were not intended to create any innovation upon the generally prevailing and original system of the remedy by attachment, under which the operation of the process is confined to legal debts as contradistinguished from equitable demands. This conclusion, however, does not help the defendant, unless it can be maintained that the defendant's remedy upon the cause of action to secure the sum payable to him is exclusively in equity. The association undertook to pay him a sum of money by making an assessment upon its members, and paying what should be realized thereon, not exceeding $5,000, to the beneficiaries named in the contract. Upon refusal to make the assessment, it would be liable at law for such sum as might have been collected if it had fulfilled its undertaking. It would not be permitted to allege that nothing was due the plaintiff because of its own default in not doing what it had agreed to do. Any condition in the contract by which it is attempted to deprive the beneficiaries of the judgment of a court of competent jurisdiction as to the extent of the legal obligation of the association could not stand in the way of a recovery. Such a condition affects the right to a judicial trial, and is void as against public policy. Insurance Co. v. Morse, 20 Wall. 445; Nute v. Hamilton Mut. Ins. Co., 6 Gray, 174, 181; Tobey v. County of Bristol, 3 Story, 800.

On the other hand, if the association should collect the sum payable from the members, or any part of it, the money would belong to the beneficiaries, and they could maintain an action at law to recover it.

Doubtless they could resort to equity, and seek a mandatory injunction to coinpel the association to make an assessment upon its refusal to do so; but, although they might elect to pursue this course, they would not necessarily have to do so. It must therefore be held that the attachment was properly levied upon the demand of the defendant against the National Benefit Society, and consequently that the defense of want of jurisdiction should not have prevailed. A new trial is granted.

MACK and others v. JONES.

(Circuit Court, W. D. Tennessee. July 6, 1887.)

1. ΑTTACHMENT FRAUDULENT CONVEYANCE-EVIDENCE-STATEMENT TO CRED

ITOR.

An allegation that a debtor has fraudulently conveyed, or is about fraudulently to convey, his property, is not sustained by showing a discrepancy between a statement made to another creditor, with a view of securing a credit, and the actual truth of his condition, as shown by a critical examination of his affairs, if the statement be so generally true that it fairly represents his condition. Such statements are not intended to be as precise as if made from balance-sheets in book-keeping.

2. SAME-OVERBUYING GOODS.

The allegation of a fraudulent transfer is not sustained by evidence showing that a merchant who had been successful, and was not in debt, concluded to enlarge his business, and bought imprudently perhaps more than he should have done; particularly if the creditors eagerly eagerly persuade persuaded him to buy and encouraged his imprud imprudence by pressing goods upon him. If his intentions were honest, his want of judgment cannot aid the attachment.

3. SAME-REMOVAL OF GOODS.

It is not evidence of a fraudulent intent to dispose of the property that a merchant removes a considerable part of his stock to another town in the same county, and opens a store there to sell them, if the proof shows that the scheme was fairly reasonable, and the purpose an honest one, to sell goods to the trade, and not to cheat his creditors.

4. SAME-FORMING A PARTNERSHIP.

It is not a fraudulent transfer of a merchant's property for which he may be attached if he places part of his stock in a partnership in a town near by, to be so sold, provided the partnership be a fair one, and the contract has an adequate and valuable consideration to support it. A transfer may be so made without implication of fraud, and is not in any proper sense out of the usual course of trade, nor does it in any proper sense hinder and delay or defraud his creditors.

5. SAME-SELLING BELOW COST.

An attachment for fraudulently disposing of his property, and being about to do so, is not sustained by proof that, in opening a new store to attract customers, a few articles are cheaply sold nearly at or below cost, the instances proved being insignificant, and fully explained by the circumstances; particularly if the fact be that the stock was generally sold at a profit, and the business was successful.

7. REMOVAL OF CAUSES - ATTACHMENT ATTACHMENTS NOT REMOVED.

EFFECT OF TRANSFERRING FUND ON

An attachment suit, being the first levied, was removed to the federal court, the state court directing the receiver to retain so much of the fund as belonged to that suit and pay the balance into the registry of the state court, which was done. Held, that on the failure of the removed attachment in the federal court the defendant was entitled to the fund, and that it would not be returned to the state court to answer subsequent attachments not removed; but any surplus retained by the receiver should be by him paid under the order of the

state court.

Attachment.

This is an attachment under the statute in Tennessee for having fraudulently disposed of property, or being about to do so, to which the defendant pleaded in abatement, denying the charges made. The facts appear in the opinion of the court.

McFarland & Bobbitt, for plaintiffs.

Rawlins & Williams and M. M. Neil, for defendant.

HAMMOND, J. A most careful reading and reconsideration of the proof has confirmed the impression left at the hearing that this attachment was unauthorized. Giving the widest scope to all that is claimed for the language of Mr. Justice STRONG in Butler v. Watkins, 13 Wall. 456, as to the latitude to be given in the admission of evidence to prove fraud, and conceding the utmost to the suggestion that often it cannot be proved by direct testimony, but only by circumstances, and yet fraud cannot be established by inconsequential circumstances and facts that are entirely consistent with honest intentions, albeit they be facts that show an unwise judgment and imprudent business conduct. Take any merchant, and especially the country merchants of this section, and subject their business conduct to hypercritical scrutiny, and circumstances will be developed showing that, in the struggle for existence that goes on among them, they violate somewhat the highest standards of business prudence. They often do not keep books that should be kept, nor proper accounts. They buy too largely; engage in doubtful speculation; enterprises that risk too far their judgment as to the future of crops and other business contingencies; and do not always, if ever, give their creditors, or proposed creditors, the most exact statements of their condition, being satisfied with generally truthful exhibits that are as full as any one expecting to deal with them has a right to expect. These statements are not intended to be exact. If so, every merchant would have to produce a balance sheet, and a complete and detailed showing of his affairs, as the preliminary to asking a credit of the wholesale dealer. Few merchants would be willing to do this, and it is not asked. Therefore discrepancies between the statements that are made and the exact showing by the books are quite probable in almost any case; as here, the statement of the defendant to Eiseman, which has been so severely scrutinized, taken in the light of his explanations is of that character. Want of precision in it is not, in my judgment, of consequence, as a circumstance showing any fraudulent intent; particularly when taken in connection with the specific transfer alleged to be fraudulent, to be presently noticed, and in relation to which the circumstance must be considered. As a conclusive indication that it does belong to that category of unintentional misstatements, the effect of it was to cause Eiseman to refuse the credit asked, and to withhold the goods ordered. Wiser than the plaintiffs and others, whose eager drummers crowd their goods upon the defendant, Eiseman saw that he was overbuying and unwisely expanding his business upon a credit, based on a faith in the future of it that Eiseman did not share. If the defendant had conceived the fraudulent scheme to buy goods extensively on a credit, and leave his creditors in the lurch, as plaintiffs insist, the misrepresentations would have been of a character to deceive Eiseman, and the truth would not have been as nearly told as it was.

And here I wish to say that the attachment laws of Tennessee were not designed to enable merchants who crowd their sales upon reluctant or imprudent retailers to impound the goods they have so parted with, as soon as they become alarmed for the success of their debtor in his enterprise of selling them. The attachment laws are made to protect them against fraud, -specific fraud, but not imprudent business management, or that kind of imaginary fraud that they attach to insubstantial mercantile speculation which the wholesale merchant decries when it is developed in his customer, although indulged in by himself in the very transaction.

Briefly, the proof here shows that the defendant, a young man who had been a dry goods clerk, launched out for himself by buying at an insolvent assignment a stock of goods, at very low figures. To these he added other goods, and, after the year was done, he had been very successful. He did not owe a dollar, and had more and better goods than he had started with, though he had some of the old stock left. He had paid his purchases promptly, and taken the benefit of the discounts allowed for cash. He was dazed with the success, and thought he could enlarge his business. So were the drummers who lived round about him, and were his friends, every one of them. They drummed him to death; even extorting promises that he should buy only from them, respectively, they thought it was such a good thing. It is difficult to say which was most to blame, -the defendant or the drummers; but certainly those orders and promises should not be now taken to mean that the defendant had then cunningly contrived a scheme to get the goods, and pocket the money for their sales, as is now alleged, in the desperation of the desire to save this attachment; for they are wholly consistent with an honest purpose to conduct the business as successfully as before. Why should this successful young merchant conceive that scheme, at that time, rather than the more honest one of enlarging his business into a greater success? It is simply preposterous to suppose that he did. He did not owe anything, had paid for his stock on hand, and was not in the least embarrassed. The circumstances all tend to support his contention that he thought he could enlarge his business, buy on time, and have the money ready to meet his bills four months thence. He seems to have been himself somewhat alarmed at his orders, and coun