13 Iowa 136 | Iowa | 1862
— This action was commenced in January, 1861. The writs of attachment (for there were three) were issued at the commencement of the proceeding. The questions arising, therefore, are to be determined under the Revision of 1860.
In the cases of Reed v. Chubb and others, 9 Iowa, 178 ; Zinn v. Williams, Id., 178, and Stadler Bros. S Co. v. Parmelee & Watts, 10 Id., 23, it was- held by a majority of the judges under the Code of 1851, that if the writ was sued out at
It was held in Stadler Bros. & Co. v. Parmelee & Watts, 10 Iowa, 23, that if the bond was joint and several, the obligee might set off his damages against a demand in favor of one or all the obligors. But not so when the bond was joint only. In this case the bond is joint and several, and, upon the authority of the above ruling, defendant would have a right to set off his damages against the plaintiff, (the Bank) one of the several obligors. But can Morris, one of the joint
There is no objection to defendant’s demand, that he claims as for a tort, and not upon contract. He claims damages arising under a contract, most clearly. If it was otherwise, it is questionable whether it would make any difference. Raver v. Webster, 3 Iowa, 502.
The bond on file was substituted for the one given at the commencement of the action, and as it had the effect of sustaining and upholding plaintiff’s attachment from that time (as far as the requirement of a bond is concerned,) so, from that date it is to be treated as defendant’s security. Being such, it was not a claim accruing to defendant after the commencement of the action, as assumed by plaintiff. It took the place of the original one, and is to be treated as if then filed.
Other matters of minor importance are discussed by counsel. The foregoing views, however, dispose of the substantial points, and the judgment below will be
Reversed.