Fisk v. French

Vanclief, J. Appeal from an order discharging an attachment in an action on four promissory notes—the [401]first for $30, dated December 5, 1891; the second for $40, dated March 25, 1892; the third for $100, dated April 12, 1892; and the fourth for $238.58, dated November 17, 1892—the first and last two drawing compound interest at the rate of three per cent per month and the second like interest at rate of two and a half per cent per month. Neither the substance nor legal effect of any one of the notes was stated in the body of the complaint, but a copy of each note was attached to the complaint and therein referred to as an exhibit. Immediately under the note of November 18, 1892, for $238.58, was written an assignment by defendant to plaintiff of one hundred shares of “ Belcher Mining Stock// “ as collateral security for the payment” of the last-mentioned note, and an authorization of plaintiff to sell the stock at public or private sale, with or without notice, in case of default in payment of principal or interest of that note, and to apply the net proceeds of the sale to the payment of the last-mentioned note, and the surplus, if any, to the payment of any other obligations of defendant to plaintiff which might be held by the latter at the time of such sale.

The following is a copy of the affidavit for attachment:

“Asa Fisk, being duly sworn, says: That he is the plaintiff in the above-entitled, action; that the defendant, J. B. French, in the said action is indebted to the plaintiff in the sum of three hundred and seventy-six and Tso%- dollars, gold coin of the United States, over and above all legal setoffs and counterclaims, upon an express contracts, for the direct payment of money, to wit, four promissory notes, and that such, contracts were made and are payable in this state, and that the payment of the same has not been secured by any mortgage or lien upon real or personal property, or any pledge upon personal property.

“That the said attachment is not sought,and the said [402]action is not prosecuted to hinder, delay, or defraud any creditor or creditors of the said defendant.

“ Asa Fisk.”