attachment, and the mortgagees allowed and permitted the same to be taken from their possession thereon, the right to the possession thereupon at once vested in the mortgagees, (the respondents herein,) and the mortgagors were thereby divested of any attachable interest in the property. The mortgagees thereby became entitled to the possession of the property, and the sheriff had no right to attach the same, for the reason that he had no right to the possession of the property. The taking being wrongful, no demand was necessary before bringing this action.

Judgment affirmed.

(5 Mont. 512)

LAUBENHEIMER v. MCDERMOTT.
Filed January 29, 1885.

1. CHATTEL MORTGAGE-PRE-EXISTING DEBT.

A pre-existing debt is a valuable and valid consideration for a chattel mortgage executed some time afterwards.

2. SAME-SECTION 4, ACTS TWELFTH SESS.-CONSTRUCTION.

The true construction of the statute is that a mortgage may be given of chattels for such times as the parties may agree upon, subject to be defeated when one year has expired after the filing in the proper recorder's office.

3. SAME

RIGHT OF POSSESSION-CLAIM AND DELIVERY.

The right to the possession of personal property is essential in the plaintiff in an action for claim and delivery.

Appeal from Third district, Lewis and Clarke county.

Isaac D. McCutcheon, for appellant.

Bullard & Barbour, for respondent.

COBURN, J. This is an action for claim and delivery of personal property, certain live-stock. The defendant demurred to the complaint. The demurrer was sustained, and judgment rendered on the demurrer, and for costs, in favor of the defendant. From this judgment the plaintiff appeals.

It is stated in the complaint that on the twentieth day of February, 1882, one Valentine Laubenheimer, being indebted to plaintiff, gave to her his promissory note for $6,000, payable to her order five ́ years after date, which sum is wholly unpaid. That on the twentyfirst of February, 1883, said Valentine Laubenheimer, being a resident, in good faith, etc., to secure this note, executed and delivered a chattel mortgage to the plaintiff of certain live-stock, which was duly filed and recorded on the twenty-eighth day of February, 1883; that on the twenty-third of January, 1884, the defendant, without the plaintiff's consent, took a portion of the live-stock described in the mortgage, of the value of $1,500, from the possession of the plaintiff, the plaintiff being entitled to the possession thereof. A demand is alleged before suit, and a refusal and unlawful detention by defendant.

The defendant takes the position that this complaint is insufficient, for the reason that there is no allegation of any consideration for the mortgage in the complaint, it not being given contemporaneously with

the note, and not being a part of the original transaction at the time of the execution of the note; and that it was made solely for the purpose of securing the note, which was executed a year and a day before it; and that for this reason the mortgage is not good even between the parties thereto; that a pre-existing debt is not a valid consideration, which can only rest upon something new or contemporaneous, or upon some change in the evidence of indebtedness. We think the doctrine that a pre-existing debt is a valuable consideration for a chattel mortgage, is sustained by the weight of authority. See Jones, Ch. Mortg. § 81, and cases cited, in which he asserts that "such a mortgage protects the mortgagee to the same extent that he would be protected if he had paid a new consideration at the time of the mortgage." Kranert v. Simon, 65 Ill. 344; Machette v. Wanless, 1 Colo. 225; Paine v. Benton, 32 Wis. 491; Butters v. Haughwout, 42 Ill. 18; Prior v. White, 12 Ill. 261; Wright v. Bundy, 11 Ind. 398.

It would seem, then, that this mortgage is valid as between the parties, being founded upon a sufficient.consideration, unless it is such a mortgage as is prohibited by the statute. The statute (section 4, Acts Twelfth Sess. 4) is as follows:

"Any mortgage of goods, chattels, or personal property, acknowledged and filed as herein before provided, shall thereupon, if made in good faith, be good and valid, as against the creditors of the mortgagor and subsequent purchasers and mortgagees from the time it is so filed until the maturity of the entire debt or obligation, for the surety of which the same was given, and for a period of twenty days thereafter, provided said time shall not exceed one year."

The question arises: Is this a provision limiting the operation of all chattel mortgages to one year, or does it contemplate mortgages for any period of duration, subject to the attacks of creditors after the expiration of one year from the execution and filing of the mortgage for record? In other words: Is the time limited to one year between the filing and the maturity of the debt? and is a mortgage for a debt which does not mature until after the lapse of four years valid and binding upon the parties thereto until overthrown by creditors? This provision does not forbid chattel mortgages for a longer period than one year from the date of filing them for record, but recognizes them as valid, allowing them to be assaulted and overthrown after that time by creditors of the mortgagor and subsequent purchasers and mortgagees. But if they make no assault, then it is fair to infer that. the mortgage may remain in force during the time agreed upon by the parties to it. This limit of one year seems to be but an arbitrary provision fixing the period within which no attack can be made upon a chattel mortgage by the persons named; and we can perceive nothing in the nature of business or in public policy which should restrict parties from giving chattel mortgages for any period upon which they may agree. And we cannot infer from the language of the act, or from the state of society, or the course of business, that the legislature of 1881 intended to prevent parties from contracting as to mort

gages for any time satisfactory to themselves. Formerly the statute provided that a chattel mortgage should be good and valid, from the time it was recorded, for a space of time not exceeding one year. Rev. St. 595, § 901.

It would seem, then, if the respondent's construction is to be given to this statute of 1881, that the amendment amounted to nothing. The language of the two sections is in no respect similar. "Creditors, subsequent purchasers, and mortgagees" are not mentioned in the first act, but their interests are cared for in the second,-that of 1881. The duration of the mortgage beyond one year is positively forbidden; and if this is the meaning of the act of 1881, why was any protection attempted to be given to creditors and third persons by allowing them to attack a mortgage, after one year had expired, and was a nullity before the statute allowed it to be assaulted? This privilege accorded to them would be without value, and absurd in its nature. The true. construction of this statute is that a mortgage may be given of chattels for such times as the parties may agree upon, subject to be defeated when one year has expired after the filing in the proper recorder's office. The respondent denies the right of appellant to the possession of the property under the terms of the mortgage, which are as follows:

"It is further provided that the said party of the first part, his heirs and assigns, shall have the right to remain in the possession of and carefully use all of the property above described until," etc.

The mortgagee is not entitled to the possession under the express terms of the mortgage. The right to the possession of personal property is essential in the plaintiff in an action for claim and delivery. Any fact showing that the plaintiff in this action had no right to the immediate possession when she began the suit, is a complete bar to the action. The provision in the mortgage that the mortgagor, Valentine Laubenheimer, should have unlimited possession, is such a fact, and bars the plaintiff in this suit. In the case of Belden v. Laing, 8 Mich. 500, the court say: "The object of our statutory replevin is to determine the right of possession at the commencement of the action, as well as title to the property for temporary or permanent purposes connected with that possession." See Clark v. West, 23 Mich. 242; Davidson v. Waldron, 31 Ill. 120; Hill v. Freeman, 3 Cush. 260; Whitwell v. Wells, 24 Pick. 25; Johnson v. Neale, 6 Allen, 227; Wade v. Mason, 12 Gray, 335. See, also, Wells, Repl. § 107, and notes.

The mortgagor, under the agreement, was at the commencement of this action entitled to the possession of the property.

Judgment affirmed.

1. ATTACHMENT-UNDERTAKING-NOT NECESSARY FOR PLAINTIFF TO SIGN. In an attachment allowed by the Code, the undertaking on the part of the plaintiff means an undertaking for him or on his behalf; and it is not necessary to the validity of such an undertaking that it be signed by the plaintiff. The statute does not require that he sign it, but that it be signed by two sufficient sureties on his behalf or for him.

2. SAME-DEFECTIVE OR INSUFFICIENT UNDERTAKING-NEW ONE ALLOWED.

It is competent for a plaintiff in a proceeding by attachment, under the Code, to give a new undertaking in attachment when he finds, by a decision of the court or otherwise, that the first undertaking is defective, or in any manner insufficient.

Appeal from Second district, Silver Bow county.
W. O. Speer, for appellant.

Randolph & De Witt, for respondent.

WADE, C. J. This is an appeal from an order dissolving an attachment, because of the insufficiency of the undertaking and the refusal of the court to permit a new undertaking to be filed. The undertaking given was not signed by the plaintiff, but was signed by two sureties on his behalf, and contained the following condition:

"That if the defendant recover judgment in said action, or if the court shall finally decide that the plaintiff was not entitled to an attachment, the plaintiff will pay all costs that may be awarded to the said defendant, and all damages he may sustain by the wrongful suing out of the attachment."

This was the condition required by section 180 of the Code prior to the amendment of February 23, 1881, (Twelfth Sess. Laws, 9.) The amended section requires the following condition to an under-. taking in attachment:

"The condition of such undertaking shall be to the effect that if the defendant recover judgment, or if the court shall finally decide that the plaintiff was not entitled to an attachment, the plaintiff will pay all damages."

1. The condition contained in the amended section is broader and of wider scope than that required by the original section. A wrongful act implies malice. Harman v. Tappenden, 1 East, 563; 2 Rap. Law Dict. 1371, tit. "Wrongfully."

Private wrongs are civil injuries. A wrongful act is something that creates a liability because of the wrong. A person might suppose that he was entitled to an attachment and be honestly mistaken. He might procure an attachment, thinking his right was perfect, and subsequently ascertain that he was not entitled to it. In such a case there would be no wrongful act or intent on his part; but his sureties on an undertaking drawn under the amended section would be liable, while if the undertaking was conditioned as provided for in the original section, they would not be liable. Under the amended section, the sureties are liable in any event, if it is finally held that the plaintiff was not entitled to an attachment; while under the original section they are not liable, unless the plaintiff wrongfully procured the at

tachment to issue. These provisional remedies are purely statutory, and the requirements of the statute must be substantially complied with in all material particulars.

2. The statute provides that before issuing the writ the clerk shall require a written undertaking on the part of the plaintiff, with two or more sufficient sureties. Twelfth Sess. Laws, 9. An undertaking on the part of the plaintiff means an undertaking for him or on his behalf; and it is not necessary to the validity of such an undertaking that it be signed by the plaintiff. The statute does not require that he sign it; but that it be signed by two sufficient sureties on his behalf, or for him. The undertaking in attachment is not a bond with sureties.

3. The 114th section of the Code provides that the court may, in furtherance of justice, and on such terms as may be proper, amend any pleading or proceeding by correcting a mistake in any respect. The purpose of requiring the undertaking in attachment is security to the defendant whose property has been seized by process of law; and it is not very material to the defendant when the undertaking is filed, provided this purpose is accomplished. Before the writ can issue, the clerk must require a written undertaking on the part of the plaintiff. But the clerk is not a judicial officer; and suppose he accepts an undertaking that is defective in form, or otherwise insufficient? Are the rights of the plaintiff thereby concluded? Does he forfeit the fruits of his vigilance by reason of a clerical or other mistake? We think not. The 114th section of the Code is peculiarly applicable to cases of this kind. If the affidavit in attachment is found to be defective, it may be amended, and the rights of the party saved; and, for a like reason, if the undertaking is deficient, a new one may be given. The defendant ought not to object to the filing of a new undertaking for his benefit.

A summons may be amended so as to make it conform to law. Polack v. Hunt, 2 Cal. 194. If an injunction is sought to be dissolved because of defect or insufficiency of the undertaking, the court or judge may require a new one to be given. Drake, Attachm. says:

"Under a statute which provides that the plaintiff, before or during the trial, should be permitted to amend any defects of form in the original papers,' it was held that a defective bond might be amended by the substitution of a new and perfect one; and that a defect in the bond would not be a sufficient cause for quashing the proceedings unless an opportunity were given to the plaintiff to execute a perfect bond, and he declined doing so."

Lowry v. Stowe, 7 Port. 483; Planters' & Merch. Bank v. Andrews, S Port. 404; Lowe v. Derrick, 9 Port. 415; Tevis v. Hughes, 10 Mo. 380; Scott v. Macy, 3 Ala. 250; Lea v. Vail, 2 Scam. 473; Wood v. Squires, 28 Mo. 528; Beardslee v. Morgan, 29 Mo. 471; Oliver v. Wilson, 29 Ga. 642.

The provision of this statute is no broader than our own, which authorizes the amendment of any pleading or proceeding for the cor