CUTLER tl. LANG.
to take up thia draft. On the twenty-sixth of February, the defendants, knowing that the money handed them by the plaintiff belonged to him, and that it was sent to retire a draft, agreed with him to forward it by cable to London, and by mail, in the form of a check, from London to Marlin, Turner & Co., at Gla:sgow. Instead of doing this, the defendants l without the knowledge of the plaintiff, and contrary to his instructions, paid the money to the credit of Martin, Turner & Co. at the Bank of Scotland, in London. Had they performed their agreement, the money would have been saved by the plaintiff. As it was, it was lost to him. The question is whether upon these facts the plaintiff can recover. It is notnecesssary to enter, at this time, upon an extended discussion of the authOrities cited by counsel, for the reason that,upon the facts as stated, the case of Southern Ewpres8 Co. v. Dickson, 94U. S. 549, seerps to be controlling. It seldom happens that two cases ,are exactly parallel upon the facts. the Dickson Case the property in question was toba<;lco, and not m()ney, and it was to be sent by express, and not by telegraph and mllil. But it is difficult to perceive why. the· principle there announced is not applicable here. The instructions given to the jury in the two cases were substantially identical. The verdict in that case also was for the plaintiff, and upon the facts there found the supreme court' said: "We think the rule is that, where the consignor is known to the carrier to be the·owner, the carrier must be understood to contract with him only, for his interest, upon such tel'JllS all he dictatel:l in regard to the delivery, and that the consignees are to be regarded simply as agents selected by him to receive the goods at a place indicated... It is thought that the plaintiff is within this rule, l\nd that this court, as the law now stands, would not be justified in disturbing the verdict. The motion is debied. ;
and others .".
«(J£rouie aom, D. NtIID
HampaMreo February 17, 1887.)
An attachment is not dissolved by an amendment Of the writ and declaration inereasing the amount claimed. made after another attachment has intervened, where the first attaching creditor, upon obtaining judgment for the inereased amount and taking out exeeution, directs the sheriff to levy only for the amount originally claimed.
At Law. Bingham &; Mitchell, for plaintiffs. Mr. Barnard, for defendant. C()LT, J. This case was heard by the court; jury trial having been waived. It is an action on the case brought the <iefendant as
A brief statennint of .th e leading facts is necessary to properly understand the question of law which is raised, and on which tl1eClise turns. On September 14,1883, one E. G. Stevens sued out B 'w-rR of attachment against George A. Stevens, of Milton, New shire. returnable to the supreme court of New Hampshire, which was placed in the defendant's hands as deputy-sheriff, and on which he attached the property of George A. Stevens. On September 17, 1883, three days afterwards, the plaintiff also brought suit against George A. Stevens in the same court, on which the defendant as deputy-sheriff attached the same property subject to prior attachment. At the March term, 1884, of the state court, the plaintiff applied for leave to appear as subsequent attaching creditor,and defend the E. G. Stevens suit, which was granted. Both actions were continued until the September term, 1884, when the plaintiffs obtained a judgment in their suit for the sum of $501.91, and costs, upon which execution was issued, and placed in defendant's' hands, with a request to levy on the property of George A. StElvens, the defendant in the suit: At the same term, ,1884, the E. G. Stevens: suit was tried by the court, and at that trial the .plaintiff, Stevens, moved to amend his· suit by increasing the ad damnum from 81,500 to $4,000, and by inserting $4,000 in place of$1,500, in the clause :dii'ecting the sheriff to attach the property, and also in the declaration.These amendments were allowed, and judgment was rendered for the plaintiff for the sum of $3,701, and execution issued and placed in hand's. At the same time execution was placed in his hllp,da ,M\v,as given written instructions to levy upon said execution only to theexUlnt of $1,500, being the amount of property attached on the After satisfying given to E., G. Stevens, this de(en,,#iit, as deputy-sheriff,' had 'rE;)maining in his hands the sum of
Upon this state of facts the plaintiffs contend that the attachment in the E. G. Stevens suit was dissolved under the rule that the increase of the amount declared on in a wrifa.nd of the ad damnum, and the subsequent rendition of a judgment for a sum larger than could have been recovered under the original writ,is an amendment of the proceedings as dissolves any attachments made upon the original writ as against subsequent 'attachments of the same' property madepl'evious to the amendment. Ckntgh v. Monroe, R .. 381; Laightonv. Lord, 29 N. . . n .v:.:Jewett, 46, N. H. 4:41; Fai'ljield'V.Baldwin, 12 Pick. 388; Peirce v. Partridge, 3 Mete. 44. In defense it is urged that amend.:ooents may effect to dissolve the attachment Recording to Clrcumstances, and tbe intention of the party making them to use them to the prejudice and injury of other attaching creditors, and that here there was no intent to injure them as shown by the instructions given to the sheriff; and, further, .tbat these amendrilents' were made necessary by the course of these plaintiffs in appeairirig <in the E. G. Steyens. suit"ap.d opposing any and every part of his claim against George :A. stevens. Tn sti'pport of this' poaitionis cited Drake, Attachm. §285; , FelWn v. "Wa(!lrworth', '7 '587; .and Page v; Jeioett,! 81pra;·,
CUTLER V. LM'G.
The r':lason why entering judgment, and taking out execution for a larger sum than is claimed in' the original writ, discharges the attachment, is that it operates or may operate as a fraud upon subsequent attaching creditors. But, if it is' done with no intent to prejudice or injure subsequent attaching creditors; if, as in this case, the party gives written instructions to the sheriff to levy upon the property only to the extent of the amount claimed in the original writ,-it is difficult to see why. the attachment should become void. In Felton·v. Wadsworth, trupra. the court held that, if an attorney inadvertently, and without the knowledge of his client, takes judgment and obtains execution for a sum' more than is really due, and on discovering the mistake goes to the officer'\Vho lias the execution, and gives him instructions relative to the service thereof, which the officer refuses to follow, it does not dissolve the attachroent. The court in this decision comment upon the cases of Fai1jleldv. Baldwin and Peirce v. and say: ' ' these cases, therefo:re, were decided. on the ground of· fraud,' and it is diffic:ult, to. see on what other ground a party could be deprived of a just "''Ie,'" There must therefore be fraud to bring a case within the. principle of these adjUdged cases. If, in thEl present Case, there was no fraud, no wrong done, or attempted or intended to be done; if the taken for too,much inadvertently by the attorney, and the party had no put:,pose of obtaining as ,his execution any more· than was due to him, and no more was taken,-:.then this case does not come within the principle of the adjudged cases, and there is no just principle upon'which the plaintiff could be deprived of what wll8 justly due to him." The authorities are reviewed in Page v. Jewett,BUpra, and the reason'ing of the cOurt is in hartnony with Felton v. Wad8Worth. The question seems to be orie of fraudulent or improper intent. If the attaching creditor takes judgment for a larger sum, and seeks to collect this whole amount, it is held to be a fraud as ,to subsequent ing creditors,' unless in case of a.ccident or mistake. In the present case the creditor never proceeded to collectthe largeJ; judgment, but, on the contrary) at the time execution was issued ap.d Pl,lt into hands. he gave written and positive instructions limiting his claim to the ,am6unt'recovetable iu theorjginal wtit, Whichgoes to provethat heueither -attempted" nor intended any inju,ry to subsequentattachingcredit<;lrs. Under these circumstances, I do not think the attachment WAS dissolVed. Let judgment be entered for defendant, withcos\S. "
In 1'e ZIMMERMAN.
(Uirouit (Jourt, No D. (JalifO'7'nia. February 28, 1887.)
' is, the offense of desertion. 2., SAHE.-,.J'U,RISDICTION OF, AND MILITARY COURTS. The civil courts have no /l.uthority to review, control, or in any manner in· , tadere with the action of the milite,ry tribunals, while, regularly, engaged in the e:J;ercise of their apPtopriate jurisdiction. 8. EiAHE.....STATUTE OF LIMITATIONS. , The bar of the statute of limitations provided for in the 103d article of war in the Case of a party charged with desertion, is a defense, to be set up in the case, which the military court trying the charge, ha,s jurisdiction to determine for without interference from the civil courts. 4. SAME-TWo YEARS' LWITATION." " ," The provisions of the 103d article of war. providing, that, "no person shall be ,liable to be tried and punished fOr any offense, which appears to have been comlllitted, ,more th/in two years before the o,f the order for such trial," is applicablf3 to:thll offense Qfdesertion; and It is, the duty of 'courts· martial ,as to this offense a,s well as 'iIi all cases within its terms, to give full effebt to this Pfovision of the statlJte; , ,
.A:ro.n-, AND NAVY-COURTS·M:ARTIAL-JURISDICTION-DESERTION. 'The military courts have to try all military offenses, committed by 'parties enlisted in the mIlitary servioe of the United States, among which,
, A minor over 18 and under 21 years of age, who enlists in,the army of th'6 United States, with6utthe consent of his parent or guardian, can commit the military offense, of,desertion. and the military tribunals jurisdiction t() , try a minor so enlisting upon a charge of The civil courts have no Jurisdiction to discharge a'minor, who enlisted 'in the army, in violation of section 1117 of the Revised Statutes, who is in,cus· tody of the military tribuna,ls, awaiting 8 trial, ordered to take place before a. court-martial. upon 8 charge of desertion.
" , ' , ' ",'
b1J the Oourt.)'
On Habeas OOryus. Before SAWYER, circuit judge, and HOFFMAN, district judge. Ward McAUister, Jr., forpetltioner. H. B. Burnham, Dep. Judge Ad; Gen., for
21 years of age, and taking theulrual oath of enlistment'found on page74, par. 76, U. S. Army Regulations of 1881. He was assigned to duty in Company D, Twenty-first United States Infantry. He served as llo soldier, one year, one month, and 2Tdays, receiving the pay, and allowances, provided by law, up to, and including, April 30, 1874. On June10, 1874, he deserted at Camp Warren, Oregon, taking his gun and equipments with hiro. On November 12, 1886, he, voluntarily, surrendered, as a deserter, to the commanding officer at the presidio, and upon said surrender he presented to the officer an affidavit, in which hestated, that he was born in Switzerland on November 2, 1853, and nexed thereto what purported to be, an official certificate of the proper
1873, enlisted as a soldier in the United for the term of five years, at Jersey City , NewJeraey,declaringatthe time, that he was
The petitioner, a native of SWitzerland, on April 17,.