that they were not intended to be enforced, as, indeed, according to the averment of the bill, they were to some extent enforced, in the usual way, as if the mortgages had not existed.

There being no fraudulent scheme or design of which the separate mortgages can be said to be only parts, but each mortgage having to be set aside only because it is in itself obnoxious to legal objection, there is no reason in law or equity why the judgment at law obtained. upon any of the notes might not have been executed upon any property of the debtor not embraced in the mortgage given to secure that note. By the statute of this state the equity of redemption in real estate subject to mortgage can in no case be sold on execution upon a judgment at law recovered for the mortgage debt. Rev. St. 1881, § 1105. It results from this, I suppose, that such a judgment is not a lien upon the mortgaged realty, even after decree in favor of creditors annulling the mortgage, because, as between the parties, the mortgage remains in force notwithstanding the decree. The same rule, it would seem, must be applied to mortgaged chattels, though the statute on the subject is in terms different. The execution of a chattel mortgage under the Indiana Code, as well as at common law, vests the title to the chattel and the right of possession at once in the mortgagee, unless in respect to the possession it be otherwise stipulated, (Jones, Ch. Mortg. § 426; Fay v. Burditt, 81 Ind. 433;) and consequently execution against the mortgagor can be levied upon such property only as authorized by the statute, which requires the levy and sale to be subject to the mortgage. Rev. St. 1881, § 722.

Subject to these restrictions, I think the decree to be entered should not affect rights of any of the parties, plaintiff or defendant, acquired by taking judgments and executions at law upon their respective demands. In respect to the liens of judgments, in Indiana, upon lands fraudulently conveyed, see In re Lowe, 19 Fed. Rep. 589. In the distribution of such fund as shall be realized after the discharge of liens and priorities acquired by judgments and executions, the defendant creditors of the carriage company, in the judgment of the court, should share pari passu with the plaintiffs, and other creditors who have come in, or who may hereafter intervene. Whatever may be the rule in cases of actual fraud, or when the bill may be and is framed for the sole benefit of the plaintiffs named in it, I am clear that in such a case as this the extent of relief proper to be granted is to cancel the illegal securities, and set aside all liens or priorities. acquired thereby, leaving the parties otherwise unaffected in their rights; that is to say, upon an equality in respect to the fund for distribution.

There remains one other question: The First National Bank and the Indiana Banking Company, before the commencement of this action, obtained in the Marion superior court decrees of foreclosure of their respective chattel mortgages, and some of the creditors who have filed intervening petitions in this case since it was referred to

the master, and whose claims upon filing were sent to the master and reported upon by him, were made parties to the foreclosure proceedings and suffered the decree to go against them by default. The records of these decrees were produced before the master in evidence, and are included in his report. It is now insisted that these creditors are estopped by those decrees from denying the validity of the mortgages so foreclosed against them, and consequently cannot, in this case, be permitted to share in the benefits or fund arising from setting those mortgages aside. It cannot well be questioned, and I believe is not seriously disputed, that the decrees referred to would have had this effect if they had been pleaded; but as they were not pleaded, before reference of the intervening petitions to the master, it is insisted that the estoppel is not established or conclusive, and that the court ought not, in its discretion, to permit the filing of the answers which were proposed to be filed after the master's report was made.

It can hardly be said that the parties had a fair opportunity to offer to plead this matter before the reference, which was made without any rule to answer. To say the least, there is nothing in the posture of the case to justify a departure from the usual liberality with which amendments and additional pleadings are allowed. The evidence was adduced before the master at the proper time, and the matter being the record of a decree, conclusive in its effect, the amendment cannot be said to operate as a surprise, or to have an effect which might have been avoided if there had been time to adduce other evidence. The answers are therefore treated as filed, and such creditors as are bound by the decrees referred to must be excluded from sharing in the fund to be distributed, in so far as it results from the setting aside of the mortgages so foreclosed.

Among the intervenors concerned in this question is the firm of Fletcher & Sharpe, composed of four members, only three of whom were made defendants to the action of the Indiana Banking Company to foreclose its mortgage; and for this reason it is contended, and I suppose correctly, that that firm, as such, is not bound by the decree. upon that mortgage, and is entitled, in respect to the property covered thereby, to stand on an equality with the plaintiffs and other creditors. There is a provision in the Code of Practice (Rev. St. 1881, § 320) to the effect that in an action against defendants jointly indebted on contract, if summons has been served upon one or more, but not on all, of them, judgment may be taken, which "may be enforced against the joint property of all, and the separate property of the defendant served." But this plainly does not apply to the decrees under consideration, because, though intended to foreclose any claim of right or interest in the mortgaged chattels, they were not based upon any contract or obligation of the firm against which the estoppel is asserted. Decree accordingly.

v.25F,no.10-38

PEOPLE, for the Use, etc., v. BOYLAN and others.

(Circuit Court, D. Colorado. December 4, 1885.)

ATTACHMENT-ACTION ON ADMINISTRATOR'S BOND-CODE COLO. § 95, SUBD. 14. A suit on an administrator's bond is not a suit on a written instrument or writing for the direct payment of money, and a writ of attachment in aid of such suit cannot be allowed under subdivision 14 of section 95 of the Code of Colorado regulating attachments.

At Law.

J. N. Baxter and F. M. Hardenbrook, for plaintiffs.
M. B. Carpenter and H. Riddell, for defendants.

HALLETT, J. Section 152 of the act relating to wills (Gen. St. 1058) provides that bonds of administrators "may be put in suit and prosecuted against all or any one or more of the obligors named therein, in the name of the people of the state of Colorado, for the use of any person or persons who may have been injured by reason of the neglect or improper conduct of any such executor or administrator as aforesaid; and such bond shall not become void on the recovery thereon, but may be sued upon from time to time until the whole penalty shall be recovered." Pursuant to that section this action is brought on the bond of Thomas Boylan, as administrator of the estate of Martha Boylan, deceased, to recover the sum of $1,087.13, alleged to be due from that estate to Levi M. Bates and others. bond is in the usual form, with conditions as follows:

The

"The condition of the above obligation is such that if the said Thomas Boylan, administrator of all and singular the goods and chattels, rights and credits of Martha Boylan, deceased, do make, or cause to be made, a true and perfect inventory of all and singular the goods and chattels, rights and credits of the said deceased, which shall come to the hands, possession, or knowledge of him, the said Thomas Boylan, as such administrator, or to the hands of any person or persons for him, and the same so made do exhibit or cause to be exhibited in the county court in probate, for the said county of Summit, agreeably to law, and such goods and chattels, rights and credits do well and truly administer according to law, and all the rest of the said goods and chattels, rights and credits which shall be found remaining upon the accounts of the administrator, the same being first examined and allowed by the county court, shall deliver and pay unto such person or persons, respectively, as may be legally entitled thereto; and, further, do make a just and true account of all his actings and doings therein when thereunto required by the said court; and if it shall hereafter appear that any last will and testament was made by the deceased, and the same be proved in court, and letters testamentary or of administration be obtained thereon, and the said Thomas Boylan do, in such case, on being required thereto, render and deliver up the letters of administration granted to him as aforesaid, and shall, in general, do and perform all other acts which may at any time be required of him by law,-then this obligation to be void, otherwise to remain in full force and virtue."

Alleging that the suit was brought on an instrument in writing for the direct payment of money, plaintiffs procured a writ of attachment in aid of the suit under the fourteenth subdivision of section

95 of the Code regulating attachments. That clause is, that "in all actions brought upon overdue promissory notes, bills of exchange, other written instruments for the direct payment of money, and upon book-accounts, the creditor may have a writ of attachment issue. upon complying with the provisions of this section." And upon the issue now made the question is, whether an administrator's bond is a “written instrument for the direct payment of money" within the meaning of the act.

Looking only to the penalty of the bond, it certainly is an instrument for the payment of money, but when we come to the condition, which is usually regarded as the substantial part, there is no provision for paying any sum to any one. The bond may be a security for the payment of money, as where goods of the estate have come to the hands of the administrator, and money has been obtained therefrom, and the county court has distributed the fund. But that is in the due administration of the estate for which the bond is a security, and not because of any express provision of the instrument. And certainly the bond is not in any way similar to the instruments mentioned in the statute.

In respect to the manner of payment, promissory notes and bills of exchange are distinguishable from many other contracts in that they are for a definite sum of money, payable absolutely at a specified time. Upon the principal nosciter a socies, the "other instrument" mentioned in the statute should be of the class of promissory notes and bills of exchange in respect to the quality of direct payment. Inasmuch as the word "overdue" in the statute is applicable to the "other instruments" as well as to promissory notes and bills of exchange, such instruments must be of a character to become overdue, and an instrument of that character must be for a fixed sum payable absolutely at a time specified. In this feature our statute differs from the statute of California, which gives the writ of attachment "upon a contract, express or implied, for the direct payment of money." In that statute no contracts are mentioned as falling within the description of contracts "for the direct payment of money," and nothing is found as to overdue contracts. It cannot, therefore, be said that decisions of the supreme court of that state upon the statute of that state ought to control here. It is to be observed, also, that in the only case cited. from that state in which the question was discussed the views expressed were not altogether satisfactory to the court. Hathaway v. Davis, 33 Cal. 161. And the opinion will hardly be more convincing to the profession than it was to the court. The word "direct" is of large use in the language, and it has been adopted into the law in many relations. We have direct descent, direct taxes, direct interest, direct route, and so on, until we have come now to direct payment. Any effort to assimilate its meaning in all the places and connections in which it may be placed must fail for obvious reasons. One mean. ing of the word, as given in Webster's Dictionary, is immediate, ex

press, unambiguous, confessed, absolute. In my judgment this is clearly the sense in which it is applied to payments. A direct payment is one which is absolute and unconditional as to time, amount, and the persons by whom and to whom it is to be made. And a written instrument which provides for such payment is one which expresses those terms fully. It is needless to point out the difference. between such an instrument and an administrator's bond. The attachment will be dissolved, and the property seized discharged.

McEvoy and others v. HYMAN..

(Circuit Court, D. Colorado. December 7, 1885.)

MINES AND MINING CLAIMS-LOCATION OF CLAIM-NOTICE-DESCRIPTION-RIGHT TO AMEND. The first record of a mining claim is usually, if not always, imperfect, and it is the policy of the law to give the locator an opportunity to correct his record when defects are found therein, and when it is so corrected the amendment takes effect with the original as of the date thereof.

At Law.

Patterson & Thomas, for plaintiffs.

H. M. Teller and Charles J. Hughes, Jr., for defendant.

HALLETT, J. Ejectment to recover a mining claim called "Little Giant," located by plaintiffs on the public lands, in the month of January, 1880. Defendant asserts title to part of the same ground under another location made in the month of October, 1879, and called "Durant." As it is of earlier location, the latter must be of superior force, if it was regularly made and properly maintained to the time this suit was brought. That the locators of the Durant went upon the ground in August, 1879, and opened the vein in the manner and to the extent prescribed by statute is fully shown. It seems that the vein crops out in places on the surface of the mountain in a way to show it is a strike for a long distance. Before August, 1879, two locations had been made on the vein in the lower part of the mountain; of these locations, the one furthest north was made by the locators of the Durant, and called "1,001." Following that in a southerly direction was the Spar claim, located by Philip W. Pratt and others. Near the southerly end of the Spar claim the vein came to the surface, and there, with the consent of the owner of the Spar, the locators of the Durant made their discovery opening, a cut. 13 feet or more in depth. To enable the Durant men to put their discovery in that place, the Spar owners gave them permission to move the Spar stakes to the north, so as to exclude from the Spar claim the ground where the discovery cut of the Durant was made; and there is evidence to the effect that this was done. Some witnesses, however, testify that the Spar stakes remained in their original position during the following winter, and perhaps a longer time.