Opinion of the Court.

the agreement dated September 7th, 1867, set forth in the complainant's bill, was not a mortgage, and if it were, it was proscribed, because it had not been reinscribed within ten years from the date of the original inscription, as required by law.

Upon final hearing upon the pleadings and evidence, the circuit court dismissed the bill, and from its decree the complainant appealed.

Mr. J. D. Rouse, Mr. William Grant, and Mr. Thomas L. Bayne for appellants.

Mr. Joseph P. Hornor, and Mr. W. S. Benedict for appellees.

MR. JUSTICE WOODS delivered the opinion of the court.

It is conceded by counsel for complainant that the original mortgage made by Tucker Brothers, dated February 24th, 1860, and the decree rendered thereon in favor of the Bank of New Orleans by the District Court of the Parish of La Fourche, in June, 1867, were both extinguished by the sale of the mortgaged premises to Cummings on September 7th, 1867.

But complainant insists that the agreement made by Cummings on the day last named, with the Bank of New Orleans and other parties entitled to the proceeds of the sale, constituted a mortgage, and that the same having, on September 12th, 1867, been recorded in the office of the recorder of mortgages for the parish in which the lands were situate, secured them a lien and privilege on the premises from the date of said record.

We are of the opinion that this contention is not well founded. While it may be conceded that no precise form of words is necessary to constitute a mortgage, yet there must be a present purpose of the mortgagor to pledge his land for the payment of a sum of money, or the performance of some other act, or it cannot be construed to be a mortgage. Wilcox v. Morris, 1 Murphy, 116 (S. C. 3 Am. Dec. 678).

The agreement of September 7th, 1867, does not, on its face or by its terms, profess to create a lien in favor of the Bank of New Orleans on the premises in question, but it recites that the parties thereto do not thereby impair, affect, or novate their ex

Opinion of the Court.

isting claims; that the original mortgages and privileges remain in full force and are recognized as operating on said property "to secure the debts stated as aforesaid with the rank above stated." The agreemen is not of doubtful meaning. Its purpose is to recognize the old mortgage made by Tucker Brothers in 1860 and to preserve its lien on the mortgaged premises from the date of its inscription.

The contention of complainant is not that the agreement is a mortgage to secure the notes made by Tucker Brothers, but to secure from Cummings the price which he bid for the premises at the sale made to satisfy the mortgage executed by Tucker Brothers. The bill of complainant is framed upon this theory. But the fault of this theory is, that the agreement does not profess, of its own force, to secure the money due from Cummings, but excludes the idea that such is its purpose by declaring that the original mortgages are recognized as operating on said property to secure the sums due from Cummings.

It is perfectly clear, therefore that the agreement of September 7th, 1867, was not intended by the parties as a new mortgage to take effect at that date, but as a recognition of the old mortgage, and that its purpose was to keep it alive and to preserve its lien as of the date of its inscription.

In other words, Cumming, by this agreement undertakes to keep alive and in full force a mortgage made by another party after it had been foreclosed, the mortgaged property sold, and the mortgage and the decree rendered thereon extinguished. It was not in his power to do this. It follows that the effect of the agreement of Cummings of September 7th, 1867, is simply as a contract to pay the parties entitled to it the purchase money of the premises bought by him, and creates no lien or privilege on the premises sold. In other words, it is not a mortgage.

This view is supported by the decision of the Supreme Court of Louisiana in the case of Adams v. Daunis, 29 La. Ann. 315. This was the proceeding by Adams to cause to be erased the mortgages anterior to his purchase of the premises in question. The agreement of Cummings of September 7th, 1867, was put in evidence in that case, and this court held it to be no mortgage. The decree of the circuit court must be affirmed.

Statement of Facts.

MATTHEWS v. DENSMORE and Others.

IN ERROR TO THE SUPREME COURT OF THE STATE OF MICHIGAN.

Argued October 18th, 1883.-Decided November 12th, 1883.

Courts-Officer-Trespass-Void and Voidable-Writ.

1. A writ issuing from a court of competent jurisdiction, with power to compel its enforcement, and in a case where the cause of action and the parties to it are before the court and within its jurisdiction, is not void by reason of mistakes in the preliminary acts which precede its issue.

2. If not avoided by proper proceedings, it is in all other courts a sufficient protection to the officer executing it.

3. The marshal for the Eastern District of Michigan seized the goods of the defendants in error, under a writ of attachment issued from the circuit court of that district, on a defective affidavit: Held, That in proceedings in the State courts of Michigan against the marshal, the process is sufficient to protect him if the property seized under it was liable to be attached in that suit.

This was a writ of error to the Supreme Court of the State of Michigan.

The plaintiff in error was marshal of the United States for the Eastern District of that State, and under a writ of attachment from the circuit court levied on a stock of goods which was the subject of controversy. The defendants in error, who were not the parties named in the writ of attachment, sued Matthews, the marshal, in trespass, on the ground that they were the owners of the goods, and that the goods were not liable to the attachment under which the marshal acted.

To this action the defendant pleaded the general issue, with notice that he should rely on the writ of attachment and should prove that the goods were subject to be seized under it.

When the defendant, who was admitted to be the marshal, as he had alleged, offered in evidence the writ of attachment;the court refused to receive it, on the ground that it did not appear by the affidavit on which it was issued that the debt claimed by the plaintiff in the writ was due. As the plaintiffs in the present action were in possession of the goods when they were seized under the writ, this ruling of the court was decisive

3

Opinion of the Court.

of the case. The defendant excepted and brought the case here on writ of error; the assigned error being "the refusal to admit in evidence the writ of attachment and proceedings thereunder."

Mr. Don M. Dickinson for the plaintiff in error.

Mr. O. M. Barnes for the defendants. The only question for the 'court relates to construction of Michigan stat utes. M. C. R. R. Co. v. M. S. R. R. Co., 19 How. 378. There is no conflict of jurisdiction. Buck v. Colbath, 3 Wall. 334. The affidavit was fatally defective. Cross v. McMaken, 17 Mich. 511; Wells v. Parker, 26 Mich. 102; Matthews v. Densmore, 43 Mich. 461. The defect is jurisdictional, and may be questioned in collateral proceedings. Greenvault v. Farmers & Mechanics' Bank, 2 Doug. (Mich.) 498; Wil son v. Arnold, 5 Mich. 98; Drew v. Dequindrie, 2 Doug. (Mich.) 93; Hale v. Chandler, 3 Mich. 531. The rule that a writ fair on its face protects the officer executing it does not apply when the officer is sued by a stranger to the writ. 1 Waterman on Trespass, § 467; 2 Hilliard on Torts, 135-6 and 7; Rosenbury v. Angel, 6 Mich. 508; Cook v. Hopper, 23 Mich. 511; High v. Wilson, 2 John. 45; Rinchey v. Stryker, 28 N. Y. 45. When the affidavit does not show the facts required by statute, the writ is absolutely void. Drake on Attachments, 3d ed., § 83 to 88.

MR. JUSTICE MILLER delivered the opinion of the court. After reciting the facts above stated, he continued:

The whole case turned on the trial in the local State court, as it did on the writ of error in the Supreme Court, which affirmed the judgment of the lower court, on the question of the validity of the writ of attachment in the hands of the marshal, and its sufficiency to protect him if the property seized under it was liable to be attached in that

suit.

It is to be observed that this does not present a case where the validity of the writ is assailed by any proceeding in the court which issued it, either by a motion to set it aside as im

Opinion of the Court.

providently issued, or to discharge the levy and return the property, or by appeal to a higher court of the same jurisdiction to correct the error of issuing it on an insufficient affidavit, but it is a proceeding in a court of another jurisdiction to subject an officer of the United States to damages as a trespasser for executing a writ of the court to which he owes obedience.

The Supreme Court of Michigan, whose judgment we are reviewing, says of this writ, in answer to the argument, that, being regular on its face, it should protect the officer: "No doubt the writ in this case must be regarded as fair on its face. Under the general law relating to attachments, where the suit is begun by that writ, the affidavit is attached to and in legal effect becomes a part of it; and if then the affidavit is void the writ is void also. But under an amendatory statute passed in 1867, which permits the issue of the writ in pending suits, the affidavit is filed with the clerk, and the officer to whom the writ is issued is supposed to know nothing of it. Comp. L., § 643. It was under the amendatory statute that the writ in this case was issued, and an inspection of its provisions shows that the writ contains all the recitals that the statute requires."

Here, then, we have a writ which is fair on its face, issued from a court which had jurisdiction both of the parties and of the subject-matter of the suit in the regular course of judicial. proceeding by that court, and which the officer of the court in whose hands it was placed is bound to obey, and yet by the decision of the Michigan court it affords him no protection when he is sued there for executing its mandate.

We do not think this is the law. Certainly it is not the law which this court applies to the processes and officers of the courts of the United States and of other courts of general jurisdiction.

It had been supposed by many sound lawyers, after the case of Freeman v. Howe, 24 How. 450, that no action could be sustained against a marshal of the United States, in any case in a State court, where he acted under a writ of the former court; but in Buck v. Colbath, 3 Wall. 334, where this class of cases was fully considered, it was held that though the writ be a valid writ, if the officer attempt to seize property under it