the legislature could operate to invalidate the issue of these original bonds. The question proposed is an abstract one, and is unnecessary to decide in the disposition of the case. Under the agreed facts, the injunction prayed for against the issuing of the bonds should be denied, and we so advise the district court for Carbon county.

CONAWAY and POTTER, JJ., concur.

(5 Wyo. 236)

STATE v. BOULTER. (Supreme Court of Wyoming. March 19, 1895.) INFORMATION-OFFENSE-VERIFICATION.

1. Under a statute providing that no information shall be filed for any felony until the person charged shall have had a preliminary examination and been held for trial, a prosecuting attorney can proceed by information only for the offense designated by the magistrate who holds the examination.

2. An information verified on information and belief by the prosecuting attorney does not of itself constitute "probable cause supported by affidavit," as provided by Const. art. 1, § 4.

Error to district court, Laramie county; Richard H. Scott, Judge.

Information against Charles Boulter for murder in the first degree. From a sustaining of a plea in abatement to the information, the state brings error. Affirmed.

J. A. Van Orsdel and W. R. Stoll, for the State. R. E. Esteb, for defendant in error.

CONAWAY, J. An information charging defendant in error with the crime of murder in the first degree was filed in the district court on November 27, 1894. This information was verified by the county and prosecuting attorney on information and belief. Prior to the filing of this information, a preliminary examination had been had before a justice of the peace, on a complaint charging defendant in error with the crime of murder in the first degree. The result of this examination appears from the following entry in the docket of the justice, a transcript of which is part of the record: "And the court doth find as follows: From the evidence it appears that an offense has been committed, and there is probable cause to be lieve the defendant, Charles Boulter, guilty of murder in the second degree. It is therefore ordered by the court that the defendant, Charles Boulter, be held to answer said charge to the district court of Laramie county forthwith to the present term thereof, in the penal sum of five thousand (5,000) dollars."

Our statutes authorized the prosecution of crimes by information, but with the following restrictions as to felonies: "No information shall be filed against any person for any felony until such person shall have had a preliminary examination therefor, as provid

ed by law, before a justice of the peace or other examining magistrate or officer, and shall have been held for trial by such court or officer, unless such person shall have waived his right to such examination: provided, however, that such information may be filed without such examination against fugitives from justice." To the information filed under this state of facts, a plea in abatement was interposed, attacking the authority of the prosecuting attorney to prosecute by information for a higher degree of crime than that for which the accused was committed and held for trial by the committing magistrate. The prosecution claims the authority to do this, and cite a number of California cases in support of this authority. But the California cases do not sustain this view, but the reverse. By statutory provision in that state, the committing magistrate is required to take the testimony of each witness

in case of homicide in writing as a deposition, and in other felonies when it is demanded by the prosecution or by defendant or by his attorney, and to certify such written testimony to the trial court. Without such demand, any felony, not a homicide, would go up without written testimony. The prosecuting attorney may then file his information for such crime as is disclosed by these depositions in cases in which the testimony is taken and certified in writing. But, in cases where the testimony is not taken in writing, the supreme court of California announces the rule in these words: "If the depositions are not returned, the district attorney must proceed by information for the offense designated by the magistrate, for the reason that there is no testimony on which he can exercise his judgment." People v. Lee Ah Chuck, 6 Pac. 859, 66 Cal. 662. So far as we can ascertain, the correctness of this proposition has not been questioned in any reported California decision. The California cases are in conflict with some points arising in cases of this kind, but none of them seem to sustain the position of the prosecution in the case at bar. The testimony is not required or even authorized to be taken in writing in Wyoming in any case, and, if the supreme court of California is correct in its view, the prosecuting attorney "must proceed by information for the offense designated by the magistrate."

A number of Michigan cases are cited on behalf of the plaintiff in error, but these cases are even more directly repugnant to the position of plaintiff in error than the California cases. The Michigan decisions do not permit the prosecuting attorney to decide what crime or what degree of crime he will file an information for, although the testimony at the preliminary examination is required to be reduced to writing in all cases. A leading case in Michigan is that of Yaner v. People, 34 Mich. 286. This case is cited in a number of subsequent cases, and always with approval. It was a prosecution

by information for the crime of murder. There had been a preliminary examination upon a complaint charging murder. The accused was held for trial, but the committing magistrate, a justice of the peace, declined to decide whether the offense which had been committed was murder or manslaughter. A motion to quash the information was sustained on account of this fact. Speaking of the preliminary examination, the court says: "And it is only when it shall appear from such examination that an offense not cognizable by a justice of the peace has been committed, and that there is probable cause to believe the prisoner guilty thereof, that he can be held for trial. Comp. Laws 1871, §§ 7859, 7860. The clear evident intent of this statute was that the magistrate should exercise his best judgment in the matter; that he should from the testimony determine whether the crime charged in the warrant had been committed; or where, as in this case, the offense charged includes one or more of lesser degree, the magistrate should determine which offense, if any, had been committed, so that the accused might not be placed upon trial in the circuit to answer to a charge different or greater than the one on which he had been examined, and to answer which he had been held for trial. If this were not so, we should have the magistrate binding over for one offense, and the prosecuting attorney filing an information for another and different one; or the magistrate binding over to answer to an offense of one degree, and the prosecuting attorney filing an information for a like offense of a higher degree." See People v. Evans, 72 Mich. 387, 40 N. W. 473. The Michigan cases are opposed to the theory that the prosecuting attorney may decide from the evidence taken on the preliminary examination, or from any other considerations, what offense or what degree of any offense he will prosecute for by his information, although the testimony is reduced to writing. The California and Michigan cases seem to be not in entire harmony; the California cases holding that the prosecuting attorney may consider the written testimony taken at the preliminary examination in determining what offense or what degree of any offense he will prosecute for by his information, and the Michigan supreme court holding that he may not consider the written testimony taken at the preliminary examination in determining the question, but that he is bound by the action of the committing magistrate. In these states and in other states the prosecuting attorney will not be bound by an imperfect designation of the crime or degree of crime charged. It will be sufficient if the crime charged in the information is substantially the same as that for which the accused was held for trial. The cases are generally to the effect that the prosecuting attorney may charge the crime more fully and technically than it is charged

by the committing magistrate, and may do so in different counts in proper cases. He is not bound by any inaccurate language of the committing magistrate, but is bound to confine his prosecution to the same charge in substance designated by the committing magistrate. See Brown v. People, 39 Mich.

37.

Statutes such as those of California and Michigan were evidently not intended to prevent an effective prosecution of criminals in the district court by confining the prosecuting attorney, in framing his information, to any erroneous use of words, or even inadequate language, of the magistrate in his commitment. On the other hand, the statute clearly does not vest in the prosecuting attorney the authority to determine for what crime he will file his information. But in Wyoming, the testimony taken by the examining magistrate not being reduced to writing, there is nothing upon which the prosecuting attorney may exercise his discretion or judgment. The commitment of the magistrate is all he has to act upon. The first legislature of the state of Wyoming gave the prosecuting attorney authority to file his information whenever he was satisfied that a crime had been committed in his county. Sess. Laws 189091, p. 215, § 7. The second legislature took away this authority. Sess. Laws 1893, p. 44, § 1. Another consideration that should not be overlooked is that the information is verified by the prosecuting attorney on information and belief; and there is no finding or showing of probable cause to believe the defendant guilty of the degree of offense charged. The information verified on information and belief does not of itself constitute "prodable cause supported by affidavit." See Const. Wyo. art. 1, § 4; U. S. v. Bollman, 1 Cranch C. C. 373, Fed. Cas. No. 14,622; State v. Gleason, 32 Kan. 245, 4 Pac. 363. The knowledge of the prosecuting attorney is generally founded on information and belief. In the nature of things, he can have actual personal knowledge of but a small portion of the crime committed in his county. His information upon which his belief is founded is sworn to by no one. No one is criminally liable if it should prove to be false and malicious. Such verification furnishes no safeguard against unfounded and vexatious arrests.

The plea in abatement to the information charging murder in the first degree was properly sustained by the district court, because (1) the committing magistrate did not hold the accused for trial for that degree of offense; (2) the committing magistrate did not find that there was probable cause to believe the accused guilty of that degree of offense. See, further, People v. Thompson, 24 Pac. 384, 84 Cal. 598.

GROESBECK, C. J., and POTTER, J.,

concur.

(6 Colo. App. 97)

HANSCOM v. HANSCOM et al. (Court of Appeals of Colorado. March 14, 1895.) ACTION FOR ALIMONY-JURISDICTION OF EQUITYCONVEYANCE IN FRAUD OF WIFE

POWER TO SET ASIDE.

1. An action for alimony is a proceeding in rem, within the meaning of Code, § 41, providing for service by publication in such proceedings.

2. A court of equity, independent of stat ute, has jurisdiction to award alimony, even when no divorce is sought.

3. Where a husband, after having made fraudulent conveyances of his property to defeat the rights of his wife, has absconded, a court of equity will, in an action by the wife for alimony, set aside such conveyances, and subject the property to a lien for the alimony awarded.

Error to district court, El Paso county.

Action by Charlotte H. Hanscom against George G. Hanscom and others. From a judgment dismissing the complaint, plaintiff brings error. Reversed.

Harry E. Wilson and Wells, Taylor & Taylor, for plaintiff in error. A. T. Gunnell, amicus curiae.

THOMSON, J. This is a suit for alimony. The complaint contains allegations which, if true, would entitle the plaintiff to a divorce, but a divorce was not prayed. The complaint also avers fraudulent conveyances, made by the defendant George G. Hanscom, the husband of plaintiff, to the defendants George B. Hanscom and Martin Van Nason, of his real estate in Colorado, specifically describing it, for the purpose of defeating any claim of the plaintiff against him for alimony or separate maintenance. The complaint further alleges the transfer by him to George B. Hanscom of his personal property, the withdrawal from bank of his money, amounting to about $20,000, the taking of his promissory notes, mortgages, and other evidences of debt, his flight from this state, and his continued absence therefrom; and concludes with a prayer for alimony to be adjudged a lien upon the property described, and for a decree that the fraudulent conveyances be set aside, and that such portion of the property as may be necessary to satisfy the judgment be sold for that purpose. The principal defendant being absent from his domicile, and beyond the reach of the process of the court, upon proper proceedings had, and affidavit executed, publication of summons was ordered and made in conformity with law. The court dismissed the complaint, for the reason, as it appears, that it considered itself without jurisdiction to render any judgment in the case, unless personal service of process was first had upon George G. Hanscom. The question submitted to us for determination is the effect in this case of constructive service of summons upon the principal defendant. Section 41 of the Code specifies the conditions upon which service by publication may be allowed, and provides that publication shall

be made only in cases of attachment, foreclosure, claim and delivery, divorce, or other proceeding where specific property is to be affected, or the procedure is such as is known as a proceeding in rem. To render a publication of summons effective for any purpose, it must be made in one of the enumerated cases. But a judgment obtained upon this kind of service, except in case of divorce, binds only the property brought within the jurisdiction of the court. It does not authorize a general A judgjudgment against the defendant.

ment against him is allowed only upon his voluntary appearance to the action, or upon actual service of summons in one of the ways prescribed by sections 38 and 40 of the Code. The theory of the complaint is that the plaintiff is entitled to a lien against the property of her husband for the amount of alimony which may be awarded her, and to a decree in the same proceeding enforcing the lien. If this theory is correct, the necessary preliminary proceedings having been had, service of summons upon him was properly made by publication. The enforcement of a lien is a proceeding in rem, and in such proceeding publication of the summons may be made, where service cannot be had otherwise, as to any or all of the parties against whom a decree is sought, or who must be before the court to enable it to grant the relief. Our statute concerning divorce and alimony provides that when a divorce is decreed the court may make such order touching the alimony and maintenance of the wife as, from the circumstances of the parties, and the nature of the case, shall be fit, and may enforce the payment of the same in any manner consistent with the rules and practice of the court. Sess. Laws 1889, p. 153. Under this broad and comprehensive language the court would have the authority to adjudge the alimony allowed to be a charge upon the land described in the bill, and to subject the land to its payment. See Draper v. Draper, 68 Ill. 17; Wightman v. Wightman, 45 Ill. 167; O'Callaghan v. O'Callaghan, 69 Ill. 552. But the statute provides for alimony only in case a divorce is granted. We have no statute authorizing the allowance of alimony except in connection with a divorce. This proceeding is for alimony alone, and therefore does not come within the statute, so that, if it can be upheld, it must be in virtue of some general principle upon which a court of equity, as such, is authorized to proceed. Following the English decisions, the jurisdiction to decree alimony as an independent relief has been denied in many of our states; but in others, including this, a different doctrine has been announced. In Daniels v. Daniels, 9 Colo. 133, 10 Pac. 657, our supreme court held alimony to be within the jurisdiction of courts of equity independently of the statute, and to be a relief which might be granted, although no divorce was prayed. It may therefore be considered as established in this state that upon a proper case made equity

will award alimony, or separate maintenance, to a wife, in a proceeding where no divorce is sought. This seems to be conceded, but the contention, as we understand it, is that a claim for alimony apart from divorce involves only a personal liability against the husband, and cannot be made a charge upon his property in the first instance; so that, for the purpose of subjecting his property to its payment, a prior personal judgment must be obtained against him. Upon our first examination of the case our views coincided with those of counsel. Our impression was that the court was without power, in this proceeding, to adjudge the amount which might be awarded to the plaintiff to be a charge upon specific property, and that, as the principal defendant had not been personally served with summons, so that no judgment could be rendered against him, the suit must fail; but a more comprehensive and critical investigation has led us to a different conclusion, and, in view of the heartless conduct charged against him, and the serious hardship of the case if the plaintiff must be denied a remedy, we have not formed the opinion which we now entertain reluctantly.

It is true, generally, that the holder of a legal demand must reduce his claim to judgment against the debtor, and in some way make it a lien upon the property sought to be reached, before he can institute proceedings to annul a conveyance made in fraud of his rights; but where the debtor has absconded, and cannot be reached by the process of the court, leaving behind him property, which, by reason of its situation or character, cannot be subjected to the payment of his liabilities in any proceeding at law, the creditor may resort to equity in the first instance, and in the same proceeding have his claim established, charged against the debtor's property, and all obstructions in the way of its enforcement removed. It is peculiarly the province of a court of equity to afford a remedy where the law affords none, and so, where the law is powerless to aid the creditor, by reason of the debtor's absence, and the situation of his property, equity will assume jurisdiction, adjudicate the claim, and, by acting upon the property itself, adjust the rights of all parties to the proceeding, and afford the appropriate relief. Scott v. McMillen, 1 Litt. 302; Kipper v. Glancey, 2 Blackf. 356; Peay v. Morrison's Ex'rs, 10 Grat. 149; Pendleton v. Perkins, 49 Mo. 565; Farrar v. Haselden, 9 Rich. Eq. 331; Greenway v. Thomas, 14 Ill. 271; Kamp v. Kamp, 46 How. Pr. 143. In such a case the foundation of equitable jurisdiction is the inability of the law to enforce a legal demand, but where the debt or claim is not legal, but equitable. the jurisdiction does not depend upon adventitious facts, and is not affected by the presence or absence of the defendant. The jurisdiction is original, and, in accordance with the principles governing proceedings in equity, the

court will, in such case, for the purpose of avoiding confusion and a multiplicity of suits, afford complete relief, not only by liquidating the claim, but by removing all obstacles fraudulently interposed to defeat it. In Halbert v. Grant, 4 T. B. Mon. 580, the court said: "The reason that the chancellor requires a party possessing a claim purely legal to proceed to execution at law is that he shall prove, by going the whole length, that the law is inadequate to afford him redress, before he can call the chancellor to his aid. But where the claim asserted is purely equitable, and such as the chancellor will take cognizance of in the first instance, he will at the same time go the entire extent, and inquire into the obstructions in the road of enforcing the demand. The complainant, therefore, when he goes to equity to assert and liquidate the claim, may at the same time combine with it a complaint against the fraudulent acts of the debtor in attempting to place his estate beyond the reach of creditors, while he himself enjoys the results." See, also, Waller v. Todd, 3 Dana, 503; Bump, Fraud. Conv. 527. The claim of the plaintiff in this case is not within the cognizance of a court of law. It must be asserted in equity. A reasonable amount for her maintenance during coverture, or until reconciliation, estimated with reference to the means of her husband, and payable out of his estate, is the relief to which she is entitled, if the case made by her complaint shall be established; and if, as is charged, he has fraudulently disposed of his property for the purpose of defeating her rights, and avoiding the obligation which the law imposes upon him of providing for her support, a court of equity, in virtue of the nature and extent of its jurisdiction, will, in the same proceeding, adjudicate her claim, and remove the obstructions which he has fraudulently put in the way of its enforcement. In Hinds v. Hinds, 80 Ala. 225, the plaintiff, charging desertion and abandonment by her husband, prayed a decree for alimony out of his estate. Two persons, to whom it was alleged he had fraudulently conveyed his property, were made parties defendant, and appropriate relief prayed against them. The defendants demurred to the bill on the ground that it would not lie for alimony alone, and that there was a misjoinder of parties defendant. The decree of the chancellor overruling the demurrer was assigned for error. The supreme court held that, a wife's claim to alimony being an equitable demand against her husband, she had the right to attack for fraud any transfer or alienation of property made by him with intent to defeat her claim, and that the fraudulent grantees were proper parties defendant to the suit. This decision is cited with approval in Daniels v. Daniels, supra. The plaintiff seeks to charge her husband's property with her alimony, and to set aside conveyances made in fraud of her rights. The suit is therefore a proceed