rule prevails. His affidavit must show a good reason to believe that the ground exists; that is, that the fraud was perpetrated. Is this good reason show. by afliant's declaration that he has a good reason? It would be a unique process of reasoning which would force the conclusion that a good reason for a belief is shown to exist because it is said to exist. In what way must an affiant show that he has good reason to believe that an act has been committed in a manner which makes it criminal? Upon a plain dictate of common reason it can be shown in but one way,-to state the circumstances and manner of doing. Presenting the substance and meaning of the statute, as applied to the case at bar, it is this: The plaintiff may have its order of attachment issued if it will file with the clerk an affidavit which will show that it has a good reason to believe that the defendants fraudulently contracted the debt on which they are sued. It will be observed that the language of the statute is not that the affidavit shall state or allege, but that it shall "show." The two words are not synonymous. Webster defines "show" in its transitive sense, the sense in which it is used in the statute,-thus: to exhibit or present to view; to cause to see; to make apparent or clear, by evidence, testimony, or reasoning; to prove; to give the reason and explanation of; to manifest; to evince. So it is that the statute might real, without change of meaning, "the plaintiff shall exhibit a good reason for his belief, or he shall make apparent or clear by affidavit that he has a good reason to believe the defendant has fraudulently contracted the debt."

It

Now, an affidavit is one form of presenting testimony. Section 2609 declares: "Testimony of witnesses may be taken-First, by affidavit; second, by deposition; third, by oral examination." Section 2610 defines each thus: "An affidavit is a written declaration under oath, made without notice to the adverse party; a deposition is a written declaration under oath, made upon notice to the adverse party; and oral testimony is that delivered from the lips of the witness." will be noticed that the only difference between an affidavit and a deposition is that one is made without and the other with notice. Now, suppose the statute, instead of conferring power upon the clerk to issue the writ when an affidavit is filed, should confer that power when a deposition is filed, showing good reason for deponent's belief that the defendant in attachment had fraudulently contracted the debt; and suppose, further, that the deponent should testify only that he did believe, and had good reason to believe, such fact existed. Could a rational doubt be entertained that such testimony would be incompetent? The difference between the two forms of testimony rests wholly on the question of notice. Why should a particular form of statement be held competent when made in an affidavit, and at the same time held grossly incompetent when embraced in

a deposition? It is no response to this to say that the question of the relevancy or competency of testimony cannot arise in such case. It does arise. The statute expressly declares that the attachment can issue only upon an affidavit. Another statute declares that an affidavit is one of the forms of taking or presenting testimony, and so it results that, where the law declares that a fact shall be shown by affidavit, it means that it shall be shown by testimony. It would seem idle to enlarge further, by affirming what is universally conceded, that when a fact is to be shown by testimony, competent testimony, and no other sort, can be lawfully considered or acted upon.

If the law had made it a ground of attachment thata debtor had violated the revenue law or the stock law, or any other general law, with permission to a creditor to have his writ upon filing an affidavit showing that he had good reason to believe that his debtor was guilty of one or the other, and pursuant to this the creditor should make his affidavit stating that the debtor had violated the stock law, would any judicial tribunal hold such testimony competent for any purpose? I perceive no difference in principle between this and the case under consideration. We cannot afford to indulge the presumption that the legislature intended to alter the established rules of evidence in favoritism towards extraordinary remedies. We have no warrant to say that the legislature designed to authorize the issuance of an attachment upon a character of testimony which would receive judicial condemnation in any other procedure wherever the common law has taken root.

The proposition here advanced may be summarized thus: The affidavit of an attaching creditor is obviously something more than a piece of paper, and must be classified. It is, in its nature and intendment, either a pleading or it is testimony. In assigning it according to its legal relations, it must fall under the one head or the other, if, indeed, it may not properly fall under both. If the former, then its sufficiency must be tested by the rules of pleading; if the latter, then by the rules of evidence. It is needless to repeat that the application of either test reveals the defect.

The Ohio cases cited supra are not in conflict with these views, excepting the dicta contained in the reasoning of the court. In Coston v. Paige, 9 Ohio St. 397, the ground of attachment was a disposition of property with intent to defraud. In Harrison v. King, Id. 388, the plaintiff alleged that one of the defendants was about to remove his property, which would have the effect to delay the collection of the debt. In Emmitt v. Yeigh, 12 Ohio St. 335, the plaintiff charged that the defendant had conveyed his property to his son with the intent to defraud his creditors. In each case the supreme court held that a statement of a cause for an order of attachment, made in the language of the statute, is sufficient. This general principle

must, however, be confined to the particular facts of the cases decided. There is nothing to show that it was intended to be of universal application, and, if so intended, it would possibly be regarded as a dictum, even by the Ohio courts, except as to those cases where the same grounds of attachment existed, or other grounds bearing towards them a strong legal analogy. In none of these cases was the charge made that the defendant fraudulently contracted the debt, nor did the affiant rest his allegation upon a belief, and its reasonableness, that the cause existed.

In Wheeler v. Farmer, 38 Cal. 203, the supreme court holds that it is not necessary for the affiant to state the probative facts requisite to establish the ultimate facts. But it does not appear from the opinion what ground of attachment was relied on, nor does it appear that there is any statute in that state allowing the affiant to simply charge that he has good reason to believe that the cause exists. The court bases its opinion seemingly on the phraseology of the statute, without quoting it, and uses this language: "Under our statute, it is the duty of the clerk of the court in which the suit is commenced to issue the writ upon the filing by the plaintiff of an affidavit stating the ultimate facts in the language of the statute." By the words ultimate facts" it is understood is meant the ground of attachment in manner and form as expressed by the statute. so this case decides nothing more than that the statute expressly and imperatively requires the clerk to issue the writ when the words of the statute are employed. His duty to do so is by virtue of an unequivocal mandate imposing that obligation.

And

The case of Davidson v. Hackett, 49 Wis. 186, 5 N. W. Rep. 459, is more pertinent to the issue here involved than the other cases cited, and tends quite forcibly to sustain the contention of counsel for plaintiff. In that case the attaching creditor, following the language of the Wisconsin statute, made affidavit that he had good reason to believe that the defendant has assigned, disposed of, and concealed his property with intent to defraud his creditors. The defendant filed a traverse denying that he had assigned, or disposed of, or concealed his property with such intent. On proof heard as to the issue thus joined, the court below discharged the attachment, and the creditors appealed. The supreme court affirmed the judgment of the circuit court. In the former court counsel for appellants contended that the issue was not whether the defendant had in fact disposed of his property with fraudulent intent, but whether the creditors had good reason to believe that he had; arguing that if the creditors had sufficient reason to induce this belief, no matter how radically they were mistaken in fact, then the court should have sustained the attachment. In combatting this argument, the supreme court used this language: "If we make the proper distinction between the grounds upon which the law authorizes

the attachment to issue, and what proof must be made of the existence of such grounds before the attachment can issue, there is no difficulty in giving the statute its proper construction. The existence of certain facts justifies the creditor in attaching his debtor's property before he obtains judgment upon his claim against him, and before it has been judicially determined that he has in fact any just claim against his alleged debtor. * * * It is clear that the legislature makes the existence of some one of the facts above stated necessary in order to justify the issuing of the writ of attachment; but as the delay which would necessarily follow if the existence of such facts, or any one of them, were required to be established by judicial inquiry before the attachment issued, might defeat the very object sought to be obtained by the writ, the legislature have said that the writ may issue in the first instance, without plenary proof of their existence; that, for the purpose of issuing the writ and seizing the property of defendant thereon, it should be sufficient proof of the existence of such fact or facts, if the plaintiff, or some one in his behalf, shall make an ex parte affidavit of their existence, or that he has good reason to believe that they do exist, without stating any facts or grounds upon which his knowledge or belief is founded."

With the greatest possible respect for this opinion, and conceding to it much weight of authority, it seems to me that, in that line of reasoning by which it characterizes the delay following a judicial inquiry as to the exist ence of facts as possibly destructive of the end sought to be obtained by the writ, the court confuses the doctrine of pleading the facts with the practice, always reprehensible, of pleading the evidence by which the facts are to be sustained. It is not held by any one that there should be "plenary proof" of the existence of the fact alleged before the writ issues. No authority, or even dictum, can be found advancing the doctrine that, to authorize the issuance of an attachment under statutes similar to those of Wisconsin and Wyoming, there should first be a judicial inquiry into the sufficiency of the evidence relied upon to sustain the writ. In assailing this position, it is more probable that the court combats without an adversary. But I do hold that in every proceeding by which property is to be taken or seized, whether that proceeding be by action or in that form known as "special," the spirit of the law, and a fair interpretation of its letter, require that some fact-not an inference or conclusion from a supposed state of facts, predicated upon an affiant's statement that he has good reason to believe his inference is correct, but that some fact-be alleged in direct, unequivocal language, which, if it be found to exist, will render the defendant amenable to the process of the law. A fact charged is one thing; the evidence which will support the charge is another. The first is a thing to be averred; the second, a thing to be omitted

from averment. To a certain extent, I am in accord with the Wisconsin court, but am unable to perceive that its line of argument applies to the issue in this case. Proceeding further, the court says: "There is every reason, therefore, why the issue upon the traverse should put in issue the fact of the fraud or other cause, and not the belief, or good reason for the belief, of the plaintiff as to its existence. The language of the statute itself would seem to leave little doubt as to what is put in issue." The statute is then quoted, and the court, interpreting the statute, continus: "These facts [put in issue by the traverse] are ** * that the defendant is a non-resident of the state, or that he has committed some one or more of the fraudulent acts enumerated in the statute. It clearly is not a material fact, within the meaning of that section, whether the person making the affidavit knows, or has good reason to believe, that such facts exist.

Under the Wisconsin statute, which allows a traverse to be filed by the defendant, and which limits the traverse to the negation of the ground of attachment, as distinguished from the affidavit made to procure the issuance of the writ, the opinion of the court that the issue is upon the cause, and not upon the statement of that cause, seems to be faultless. But how far that opinion may be accepted as a general authority upon cognate questions depends chiefly, if not wholly, upon the measure of conformity of the statutes of other jurisdictions to the Wisconsin statute. Suppose the Wisconsin statute had read, as do the statutes of some other states: "The defendant may file his affidavit denying all or any of the statements of the affidavit on which the attachment is issued, and thereupon the attachment shall be con idered controverted, and the affidavits of plaintiff and defendant shall be regarded as the pleadings concerning the attachment, and have no other effect." In such case, would not the issue necessarily be that which is made by the traverse? They are the pleadings on the attachment branch of the case, and the object of all pleading is the production of an issue. If the issue be one which the court cannot try, or which is not determinate of the rights of one party or the other, then the pleadings are defective. If the plaintiff tenders a false issue, and it is accepted, or, in other words, if he makes his charge in such form as that the charge does not conform to the statutory ground of attachment, and the defendant elects to meet the charge as made, by filing his traverse, then must the plainti! suffer the consequences of his own mistake.

Now, the Wyoming Code contains no statute expressly allowing the defendant to file a traverse either of the ground of attachment, or of the statements of the plaintiff made in his affidavit for the writ of attachment. The only provisions tending in this direction are found in sections 2910, 2911. The first reads: "The defendants may at any time before judgment, upon reasonable notice to plaintiff,

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move to discharge the attachment as to the whole or any of the property attached." Second: "When the motion is made upon affidavits on the part of the defendant, or papers and evidence in the case, but not otherwise. the plaintiff may oppose the same by affidavits or other evidence, in addition to the evidence on which the order of attachment is made."

From these provisions, it appears that the defendant is required to proceed by motion, and that any affidavit used by him is to be taken, not as a "traverse," in the technical sense of that word, but as an instrument of evidence. But the motion to discharge which is allowed is, in its functions and office, similar to a demurrer, if based upon defects apparent on the record. If the plaintiff should omit an averment of the justice or amount of his claim, this motion would reach the defect; otherwise the action of the clerk in issuing the writ would be conclusive, and the defendant would be remediless. In the case at bar, the defendants did file an affidavit attempting to deny the grounds of attachment, but, as we have seen, this was not permissible, as such. Some of the denials were too broad, and put nothing in issue. They were fatally defective, in this: that the denials of the grounds of attachment were conjunctive, instead of disjunctive. But, besides this, the defendants availed themselves of the privilege of making a motion to discharge upon the ground of insufficiency of plaintiff's affidavit. What question is therefore raised by such motion? By fair analogy, it seems that every question arising out of the record is raised upon which depended the plaintiff's right to have an attachment issued. Upon what does that right depend? Clearly, as much upon plaintiff's obligation to make an affidavit in proper form, as upon the independent fact that the defendants have committed some act obnoxious to the law. In this view of the matter, the principles of Davidson v. Hackett, supra, are without application. There a formal traverse was allowed and tiled. The issue was made up, and, according to statute, it was confined to the alleged existence of the ground of attachment, and did not, and could not, reach the manner and form in which that ground was charged in the affidavit. While the form of procedure under the Wyoming statute may not be quite so systematic, and the statute itself may not be expressed with that accuracy of language necessary to convey unmistakable meaning, by giving to it a fair and reasonable interpretation, it is broader in its scope than the Wisconsin statute, and will enable the defendant to avail himself of every defect in the proceeding of the attaching creditor.

The foregoing views relate to the opinion I entertain as to the sufficiency of the affidavit filed by the plaintiff, and would constrain me to the conc usion that the judgment of the district court should be affirmed, except for one thing. In the court below the de

fendant filed his counter-affidavit, embodying in it a motion to discharge the attachment because of insufficiency of the affidavit of the plaintiff. As the record sufficiently discloses, the court was not at any time asked by defendant to adjudicate this question, and it did not pass upon it, either at the beginning of the trial of the grounds of attachment nor in the rendition of final judgment. Both parties proceeded at once to try the questions of fact which were raised, and no attention seems to have been given by any one to the motion to discharge upon the ground that the affidavit of plaintiff was insuflicient. I think that this omission to request the action of the court, and consenting to proceed to an investigation of the facts, may be likened to the failure, for instance, of a defendant who has filed a demurrer to a pleading supposed to be bad for merely formal defects, and fails or omits to ask the court to rule upon it, but files his answer, and voluntarily proceeds to trial. In such case the defendant is deemed to have waived his demurrer, and cannot, after verdict and judgment, be heard upon the grounds alleged in his demurrer. The rule would be different if it went to the jurisdiction of the court or to the cause of action. Here the question raised by the motion was one relating to form. It was not relied on below, a ruling was not asked, and none was made. I must therefore conclude that it was waived, and that this cause must be considered and decided independently of it.

Counsel for defendant in error contend that the judgment should be affirmed because the plaintiff did not make a motion for a new trial. This was not necessary. The issue tried by the court was not one of fact or of law arising out of the pleadings. Section 2652 defines a new trial as a "re-examination in the same court of an issue of fact after a verdict by a jury, a report of a referee or master, or a decision by the court;" and the sixth subdivision of the same section provides that a new trial may be granted upon the ground that "the verdict, report, or decision is not sustained by sufficient evidence, or is contrary to law." Bearing in mind that a new trial is as thus defined, that is, that it is a reexamination of the same issues previously tried, it becomes important to know what is meant by a trial and by an issue, in the legal acceptation of those words. Section 2514: "A trial is a judicial examination of the issues, whether of law or of fact, in an action or proceeding." Section 2515: "Issues arise on the pleadings where a fact or conclusion of law is maintained by one party, and controverted by the other. They are of two kinds: First, of law; second, of fact." From these provisions, and from the sections which follow those quoted, it seems clear that the action of a court in hearing and determining a motion to discharge an attachment is not, in a strictly legal sense, a trial, and therefore the action of the court may be reviewed in error, if the entire record, including the final judgment in the cause, is brought up, although

a motion for a new trial was not made below. Of the grounds of attachment alleged, the first about which there seems to be serious controversy is that the defendants fraudulently incurred the obligation to recover the payment of which the action is brought. The note is dated April 28, 1887. From the testimony it appears to be the renewal of a note, or several notes, which the plaintiff had held against the defendants for perhaps one or more years prior to that date. In the renewal of the note, Lafrentz acted as the agent of the defendants Alexander and Thomas Swan, who were absent at the time, and he affixed their signatures to the note. It is satisfactorily shown that his agency for this purpose was full and complete. The only testimony offered on this head was that of the president of the bank. On direct examination, the following questions and answers appear in the bill of exceptions, which is all of the testimony elicited by the plaintiff on the subject of fraudulent representations: "Question. While the negotiations were in progress in relation to the renewal of this paper, state what, if anything, was said by you to Mr. Lafreniz in relation to the financial standing of Swan Bros., and what, if any, reply was made. Answer. I asked Mr. Lafrentz the direct question, what kind of condition they were in. IIe replied that he had recently taken off a balance sheet of Swan Bros., and that they were worth $800,000, over and above their liabilities. Q. What further did you ask him? A. I asked him what it consisted of. He said: 'Good property; stocks and other property, figured at a fair valuation.' Q. Now you may state what, if anything, induced you to renew the paper. A. The representations made by Mr. Lafrentz." On cross-examination, the witness stated that the renewal was not made entirely on the strength of this representation, but partly on a representation Alexander Swan had previously made, that in a few days money would come to him from England, with which he would pay a considerable portion of his indebtedness to the bank,

On this testimony a question may be made. When did the Swan Bros. incur the obligation to pay this debt? Was it at the time of the renewal of the note, or at the time the debt, of which the renewal note is but an evidence, was created? It may be argued with some force that it was when the debt was first created. It was then that the consideration was received. The obligation to pay the debt was concurrent with the obtaining of the money. The note first executed was but the contemporaneous evidence of the obligation, and the note renewed only a substituted memorial of the original transaction. When this note was renewed, the consideration had actually passed, and with the receipt of that consideration the resulting obligation, continuing in undiminished force and perpetuated in the renewal, instantaneously arose. would therefore follow, if this view be correct, that fraudulent representations, made

It