Bank of California v. Boyd

Citations

• 86 Cal. 386
• 25 P. 20
• 1890 Cal. LEXIS 1037

Syllabus

<p>Attachment — Sufficiency of Affidavit—Ownership of Note — Indorsement. —An affidavit for attachment which alleges that the defendants are indebted to the plaintiff on a promissory note executed in favor of a third party, sufficiently shows that the note is owned by the plaintiff, though the affidavit does not state, in terms, that the note was indorsed to the plaintiff. The same particularity of statement is not required in an affidavit for attachment that is required in a pleading.</p> <p>Id. — Indebtedness to Plaintiff. —• An indebtedness to the plaintiff is the principal element required in an affidavit for attachment in a suit on a promissory note, and when such indebtedness appears by direct statement, and there is nothing in the affidavit inconsistent with the statement, the affidavit is sufficient.</p> <p>Id. — Lien upon Property of Deceased Indorser—Presumption upon Appeal—Indorsement without Recourse.—Upon the death of the first indorser of a promissory note, who was the original payee thereof, and who left a will bequeathing a large estate to his wife, appointing her executrix, and giving her authority, without an order of court, to settle and pay his just debts, no such lien on his real or personal property securing the payment of the note results, within the meaning of the attachment law, as to bar the owner of the note of Ms right to an attachment against subsequent indorsers; and in the absence of proof that the first indorser was the debtor of the plaintiff when he died, it cannot be presumed on appeal from an order refusing to dissolve the attachment that he was such debtor, but it must be presumed in favor of the ruling that he indorsed the note without recourse.</p>