ment should be discharged for the reasons: First, that the cause of action set out in the petition is for a tort, and cannot be aided by the provisional remedy of attachment; second, that the affidavit is not sufficient to authorize the attachment, because it does not appear therefrom that the action is upon contract. The conclusion renders it unnecessary to discuss the testimony in the case. In fact I have had no time to read over the numerous affidavits filed by both sides." It will be observed that the decision is predicated on two grounds: (1) That the cause of action stated in the petition is for a tort, and therefore an attachment will not lie; and (2) that the affidavit for an attachment fails to show that the action is founded upon contract. The petition is as follows: "The plaintiff complains of the defendant for that said defendant is indebted to said plaintiff in the sum of $9,221.33, for so much money received from said plaintiff, in the amounts, and at the dates, and upon the terms and conditions herein named, to-wit: On the 18th day of January, A. D. 1886, $1,500; on the 8th day of April, A. D. 1886, $2,000; on the 19th day of April, A. D. 1886, $2,000; on the 24th day of April, A. D. 1886, $500; on the 15th day of March, A. D. 1887, $1,500. Said several named sums were received by said defendant from said plaintiff to be loaned by said defendant for said plaintiff, and for the use and benefit of said plaintiff, and at the expiration of each loan so made by said defendant, and upon payment thereof to said defendant, he, the said defendant, was to pay the same to said plaintiff or reloan the same, as plaintiff might direct. Plaintiff further alleges that said defendant did not loan said sums of money as agreed upon for the use and benefit of said plaintiff, but applied and appropriated the same to the use and benefit of said defendant, and refuses to pay the same to said plaintiff, though often requested so to do. Plaintiff further alleges that no part of said sum has been paid. and there is now due from the defendant to the plaintiff the sum of $9,221.33, with interest thereon from the 28th day of February, A. D. 1888, at 7 per cent. per annum; wherefore plaintiff prays judgment for said sum of $9,221.33 and interest, and costs of suit." The affidavit for an attachment is as follows: "Levi G. Hart, being first duly sworn, deposes and says that he has commenced an action against Nelson Barnes in the district court of Merrick county, Neb.. to recover the sum of $9,221.33, now due and payable to the plaintiff from the defendant, on account for money had and received. Affiant further says said claim is just, and that he ought, as he believes, to recover thereon the sum of $9,221.33, and interest from the 28th day of February, 1888, at 7 per cent. per annum, and that the defendant is about to convert his property, or a part thereof, into money, for the purpose of placing it beyond the reach of his creditors, and has property and rights in action which he conceals, and has assigned, removed, and disposed of a part of his property, with intent to defraud his creditors."

In this state, an attachment cannot be issued in an action for a mere tort, as by setting on fire, whereby the property of another was destroyed, (Handy v. Brong, 4 Neb. 60;) and it must appear upon the face of the affidavit for an attachment that the debt or demand arises upon contract, expressed or implied, (Rouss v. Wright, 14 Neb. 457, 16 N. W. Rep. 765.) In other words, the rela tion of debtor and creditor must exist between the plaintiff and defendant to authorize the issuing of an attachment. The reason is very clearly stated by Judge GANTT in Handy v. Brong, supra, quoting from Hynson v. Taylor, 3 Ark. 555, as follows: "Throughout the whole statutory provisions regulating the mode of proceeding by attachment, we find the words, creditor,' debtor, and debt,' showing clearly that the relative character of creditor and debtor must have existed at the time, and that the remedy is confined exclusively to actions ex contractu, and that by no reasonable construction can it be made to apply to torts." "And in Minga v. Zollicoffer, 1 Ired. 279, the language used is that neither in common parlance, nor in legal proceedings, is a mere wrongdoer designated as a debtor, nor his responsibility for the wrong classed under

the denomination of debt.' Debts are the creatures of contracts, and the language of these acts must be exceedingly strained to bring within their operation claims arising, not from contract, but from tort." The cases cited, in our view, state the law correctly, and will be adhered to. Do the petition and affidavit for an attachment in this case show that the cause of action arises. upon contract? When a person undertakes any employment, trust, or duty, he thereby, in contemplation of law, impliedly contracts with those who employ him to perform that which he has undertaken with integrity, diligence, and skill; and if he fails to do so, it is a breach of contract, for which a party may have an action. Railroad Co. v. Peoples, 31 Ohio St. 543. At common law, in case of bailment, there has always been a choice of forms of action between actions on the case and assumpsit, which is itself really an action on the case. Case lies for breach of duty, and assumpsit for breach of promise. A duty arises out of a promise, and the law implies a promise out of most duties. Bank v. Fonda, 32 N. W. Rep. 665. The Code has simplified the forms of procedure, and provides but one form, known as a civil action, but has not changed the rights and remedies of the common law. Wilcox v. Saunders, 4 Neb. 587. Therefore, if the law will imply a promise, either from a breach of duty on the part of the defendant, or from his having undertaken to repay the money, the action will be treated as arising ex contractu. The subject was carefully considered by the supreme court of Michigan, in Bank v. Fonda, supra, under a statute substantially the same as our own; and it was held that an attachment could lie against the property of the defendant, who had embezzled the goods and chattels of the plaintiff while in its employment. Assurance Co. v. Towle, 26 N. W. Rep. 104. The petition very clearly sets forth a cause of action arising upon contract. It is alleged that "said several named sums were received by said defendant from said plaintiff to be loaned by said defendant for said plaintiff, and for the use and benefit of said plaintiff." There is also an allegation that defendant was to repay said money, or reloan the same for the plaintiff. If the allegations of the petition are true, the defendant received the several sums of money set out in the petition for the purpose of loaning the same for the plaintiff. He assumed that duty, and upon his failure to perform either his agreement or duty, or both, he thereby violated his contract with the plaintiff.

The cause of action is not stated as fully in the affidavit for an attachment as is desirable, perhaps, but sufficient appears to show that the cause of action arises upon contract. It is not necessary, in the affidavit for an attachment, to set forth at length the cause of action. It is sufficient to state "the nature of the plaintiff's claim." This must appear to arise ex contractu, but where the statement is not as full as may be desired, reference may be had to the petition. This action evidently is founded upon contract; and as the alleged conversion of the money by the defendant could only be accomplished by a breach of promise and breach of duty, the action is one for which an attachment will lie. It follows that the judgment of the district court must be reversed, and the cause remanded for further proceedings. The other judges.

concur.

HALL et al. v. PERRY.

(Supreme Court of Michigan. November 1, 1888.)

TAXATION-SALES FOR NON-PAYMENT-STATUTES-RETROSPECTIVE LAW.

The Michigan tax law of 1885 being prospective in its operation, a sale under it for taxes of previous years is void; nor can Laws 1887, act No. 17, authorizing sales under the provisions of the law of 1885 for taxes, levied before its passage, validate such a sale previously made.

Error to circuit court, Marquette county; C. B. GRANT, Judge.

Ejectment by Louis A. Hall, Andrew A. Buell, and William C. Busch against Robert D. Perry. Defendant brings error to a judgment for plaintiff. Laws Mich. 1887, act No. 17, provides that where taxes were assessed prior to the passage of the tax law of 1885, and are uncollected, and no sale has been had, all proceedings for the collection of those taxes, and sales therefor, may be had under the provisions of the law of 1885, and declares valid all sales for such taxes previously held under the law of 1885.

F. O. Clark, for appellant.

LONG, J. This is an action of ejectment, brought by the plaintiffs against the defendant, in the circuit court for Marquette county, and, under the charge of the court, verdict and judgment were entered for plaintiffs. Defendant brings the case into this court by writ of error. The facts are all agreed upon, and are as follows: The plaintiffs now hold the original title to the land in question in this case by virtue of patents procured by their grantors. The defendant holds the tax deeds covering the lands in question, for the taxes of 1882 and 1883, for taxes duly assessed thereon under the provisions of the tax law of 1882, and which said lands were sold under the provisions of the tax law of 1885, all of which proceedings assessing the tax and levying the same, and the sale of the property under such assessment and levy, were in accordance with the provisions as to the assessment and levy of the tax of the tax law of 1882, and as to the sale of the same in accordance with the provisions of the tax law of 1885, and in due form, as directed by such statute. The defendant has tax deeds duly executed by the auditor general of the state of Michigan, based upon such assessment, levy, and sales for taxes of the land in question, under the statutes above mentioned. Plaintiffs claim title and right to the possession of said land by virtue of the original patents from the United States, and defendant claims the same through the tax deeds from the state, as above mentioned: Neither party is in actual possession. The record then states the following: "It is the intention of the parties to this cause, so far as this case is concerned, to concede the regularity of the proceedings under the tax law of 1882 for the assessing and levying the tax in question; but it is claimed by counsel for plaintiffs that, though the assessment and levy of the tax was in accordance with the law of 1882, and the sale was made under the tax law of 1885, it was void." Upon the introduction of evidence, as above stated, defendant's counsel requested the court to charge the jury to return a verdict for the defendant, which request was refused, and upon such refusal the defendant assigns error.

gen

The court charged the jury as follows: "The plaintiffs in this case are the owners in fee of the land described in the declaration by patent from the eral government. They failed to pay their taxes for the years 1882 and 1883. Their lands were returned delinquent, and sold for non-payment of the taxes under the laws of 1885, and were bid in by the defendant, and a deed issued by the state to the defendant for the taxes of those two years. The law of 1885 repealed the law of 1882, and the law of 1885 provided that sales for delinquent taxes for the previous years should be made under the law of 1885. The law of 1885, which provides for the sale for taxes of previous years, has been declared by the supreme court of this state unconstitutional and void. The legislature have, during the present session, passed a law, and given it immediate effect, declaring sales under the law of 1885 for those previous years valid. This in my judgment is clearly beyond the power of the legislature. The sale was absolutely void, and it is not in the power of the legislature to declare a title to real estate valid which was, under the law when made, void. You will therefore find a verdict for the plaintiffs." The questions involved in this case were fully settled in Humphrey v. Stevens, 38 N. W. Rep. 214, (decided at the April term, 1888, of this court,) in an opinion by Chief Justice SHERWOOD, in which it was held that "neither the law of 1882

nor the law of 1885-enabled the defendants to collect the taxes assessed." It was also said in the case above cited that this court has never held that the provisions of the law of 1882, providing for the assessments of lands in this state, were unconstitutional; but, on the contrary, they have always treated those provisions as constitutional; and citing Thomas v. Collins, 58 Mich. 64, 28 N. W Rep. 553; Nester v. Busch, 31 N. W. Rep. 572; Goodman v. Nester, Id. 575. And in Davenport v. Auditor General, 38 N. W. Rep. 211, (decided at April term of this court, 1888,) it was said: "We must hold that portion of the law of 1882 providing for the assessment of property, and review of the same, constitutional." In the present case the assessments were made under the law of 1882, and the sale made under the law of 1885. The sale so made was absolutely void. The law of 1885 was prospective in its operation only, and no legal sale could be made thereunder for the taxes in question. Some claim is made in the brief of defendant's counsel, though not very strenuously urged, that the sale was validated by the act of 1887. Act No. 17, Laws 1887. In Humphrey v. Stevens, 38 N. W. Rep. 214, a bill was filed in September, 1886, for the purpose of restraining the county treasurer and auditor general from selling lands delinquent for the taxes of 1884. Counsel for defendant in that case claimed that the statute of 1887, passed after that suit was commenced, allowed the collection of taxes in question to be made under the act of 1885. This court held that the collection could not be enforced until the act of 1887 took effect; that all proceedings taken for that purpose were illegal; and that they must be taken de novo, if collection was to be enforced. In the present case the sales were made in October, 1885, and the redemption expired September 30, 1886, before the passage of the act of 1887. That is, it is claimed that assessments made in 1882 and 1883, under the law of 1882, and sales made under the law of 1885, which was prospective in its operation only, could be validated by an act of the legislature passed subsequent to the time of the sale; and, though the sale might be absolutely void, yet by subsequent legislation could be made legal. The legislature possess no such power. It is true that a retrospective statute, curing defects in legal proceedings where they are in their nature irregularities only, and do not extend to matters of jurisdiction, is not void on constitutional grounds, unless expressly forbidden; but the proposition that the legislature can make good that which was void when done, is utterly at variance with the fundamental principles of the law. When such a statute undertakes to take away vested rights to make good a conveyance which the grantor totally lacks the power to make, it is impossible to sustain it. Shonk v. Brown, 61 Pa. St. 327. The circuit court was right in its rulings, and properly directed a ver. dict for the plaintiffs. The judgment of the court below is affirmed, with costs. The other justices concurred.

MCNAUGHTON . MARTIN.

(Supreme Court of Michigan. November 1, 1888.)

TAXATION-SALE FOR NON-PAYMENT-STATUTES-CONSTRUCTION.

The Michigan tax law approved June 9, 1885, not being retroactive, a sale made under it for delinquent taxes assessed under the law of 1882 is void.

Appeal from circuit court, Jackson county; G. T. GRIDLEY, Judge. Action of ejectment brought by Robert T. McNaughton against Samuel Martin. Defendant obtained judgment. Plaintiff appeals.

James W. Blakely, for appellant. Grove H. Wolcott, for appellee.

LONG, J. This is an action of ejectment brought in the circuit court for the county of Jackson. The cause was heard before the court without a jury, and the court found the following facts and law: (1) The plaintiff claims possession of the premises described in the declaration in this cause under and

by virtue of a deed from the auditor general of this state, executed by him on the 17th of November, 1886, upon a sale of the premises for delinquent taxes for the year 1882. (2) The defendant was in actual possession of the premises described in the declaration at the time of the assessment of said taxes for the year 1882, at the time of the execution of said deed, and also at the commencement of this suit. (3) The premises so deeded were sold under act No. 153, entitled "An act to provide for the assessment of property, and the levy and collection of taxes thereon," approved June 9, 1885; the same being one of the public acts of the state of Michigan. Upon which facts the said court did on the 31st day of December, 1887, file the following conclusion of law, to-wit: "The conclusion of law upon the foregoing finding of facts is that defendant is entitled to judgment of not guilty of withholding the possession of the premises mentioned in the declaration in this cause, and that he should recover his costs, to be taxed. G. T. GRIDLEY, Circuit Judge." Exceptions were filed by the plaintiff to such findings, and judgment was thereafter entered in the cause for the defendant, in accordance with the findings, and plaintiff brings the case into this court. The trial court is correct in its conclusions of law. Substantially the same question was raised in Humphrey v. Stevens, (decided by this court at the April term, 1888,) reported in 38 N. W. Rep. 214; and again in Hall v. Perry, ante, 324, (at the April term of this court,) in which it was held that sales for delinquent taxes assessed under the law of 1882 could not be made under the law of 1885, as the law of 1885 was not retroactive. The present case must be ruled by those cases. The judgment of the court below must be affirmed, with costs. The other justices concurred.

BURNHAM et al. v. HASKINS et al.

(Supreme Court of Michigan. November 1, 1888.)

ASSIGNMENT FOR BENEFIT OF CREDITORS-FRAUDULENT PREFERENCES-ACTION TO SET ASIDE.

Under How. St. Mich. § 8744, relating to voluntary assignments for the benefit of creditors, and providing that, in case there shall be any fraud in the matter of the assignment, a bill in chancery may be filed, etc., a bill which alleges that the assignee advised a fraudulent mortgage of the assignor's property may be maintained to set it aside, and prevent its payment, without previously obtaining an order of court requiring the assignee to institute the proceedings.

Appeal from circuit court, Clinton county, in chancery; VERNON H. SMITH, Judge.

Bill by James K. Burnham and others, creditors of George V. Goodrich, against William Haskins and Eliza Haskins, mortgagees of Goodrich, George V. Goodrich, and Henry E. Walbridge, his assignee for the benefit of creditors, to set aside the mortgage, and prevent its payment. Demurrer to bill sustained, and plaintiffs appeal.

O. L. Spaulding, for appellants. H. E. Walbridge and B. J. Corbin, for appellees.

LONG, J. The bill in this cause alleges, substantially, that on November 14, 1887, one George V. Goodrich was doing business in the village of St. Jolins, Clinton county, Mich., as a retail merchant of dry goods and millinery, and on that day was indebted to complainants Burnham, Stoepel & Co. in the sum of $1,144.29; C. L. Luce & Co. in the sum of $1,559.48; Foote, Reed & Co. in the sum of $390.31; Brown, Durrell & Co. in the sum of $125.75; W. H. Mitchell & Co. in the sum of $112.52; Richard McCauley & Co. in the sum of $98.20; and to other parties about the sum of $400. He had in his store at St. Johns a stock of merchandise of the nominal value of about $4,100, but the real value of which was much less. He had no other property, real or personal. On said November 14th, Goodrich made a chattel mortgage to William