Beaudry v. Vache

By the Court: The demand of the plaintiff upon which this suit is founded was secured by “sixty-eight shares of the Los Angeles Wine Growers’ Association ” as collateral, which shares had been received by the plaintiff at the time he incurred the liability for the defendant. The plaintiff agreed to return the shares whenever he was relieved of the liability he assumed as surety for the defendant, and to give the defendant a proxy to vote upon these shares, if in the meantime an election for officers of the association should be held, which would indicate that the certificates had not only been delivered, but indorsed by the defendant. The plaintiff, having been, compelled to pay the note upon which he was surety, brought an action against the defendant, and having sued out a writ of attachment against the property of the latter, which was levied, the defendant moved to discharge the attachment, on the ground that the payment of the demand sued upon had been secured by a lien upon the shares of capital stock of the association. The motion was denied, and the defendant brings this appeal from the order.

It cannot be maintained that, upon receiving the shares as collateral the demand of the plaintiff was not secured by a mortgage lien or pledge upon personal property. The value of the lien or its sufficiency to cover the amount of the claim it was intended to secure—whether or not the certifi- ■ cates had been actually indorsed when they' were delivered to the plaintiff, so that the latter might, if he chose, have surrendered them to the association and received new certificates in their stead, and so protect himself against attachments subsequently sued out by other creditors of the defendant—are matters not to be inquired into in arriving at a determination of the question under consideration; for, whether indorsed or not, the plaintiff acquired some interest in the certificates. The lien, such as it was, was conven[6]tional in its inception, and had been accepted by the plaintiff, and it is not pretended that such security as it afforded had been rendered nugatory by any act of the defendant. (Pr. Act, Sec. 120, Subd. 2.) Under the provisions of the Practice Act designating the‘bases in which a writ of attachment may issue it is clear that the plaintiff was not entitled to the writ in the first instance, and the motion of the defendant to set it aside should have been sustained.

Order reversed.