"The attachment is merely a proceeding ancillary to the action, by which a party is enabled to acquire a lien for the security of his demand by a levy made before instead of after the entry of a judgment. This ancillary proceeding may be taken at the time of the commencement of the action, or at any time afterwards. Neither the action nor the judgment, under our law, in any manner depends upon the attachment, although the attachment depends upon the action. The judgment in the case is precisely, the same whether the attachment is dissolved or not. * * * We could neither reverse nor modify the final judgment in any particular, in consequence of any error in the attachment proceedings. The provision-upon an appeal from a final judgment the court may review any order involving the merits and necessarily affecting the judgment-implies that it shall not review intermediate orders not affecting the judgment."

It appears, however, that since this last decision was made that such orders have been made applicable by legislative enactment. Code Civil Proc. Cal. sub. 3, § 939. Upon principle, it would seem, when property has been wrongfully seized by attachment, the defendant ought not to be deprived of the right of appeal in the event the order of the court below should be against him, otherwise he might be subjected, in some instances, to great and irreparable injury. Robb v. Parker, 4 Heisk. 72. But, whether this be true or not, such an order has been held appealable in Crawford v. Roberts, 8 Or. 325. In this case, the court below sustained the motion for dissolving the attachment; and, upon appeal, this ruling or order was assigned as error, and held by the court to be error. As at present advised, we are of the opinion that an appeal will lie from an order refusing to dissolve an attachment.

And this brings us to the consideration of the question whether the court erred in refusing to dissolve the attachment issued in this cause. Under the statute a writ of attachment may issue in an action upon a contract, expressed or implied, for the direct payment of money. What is the cause of action upon which the attachment issued in the present case? It is an action to recover damages for the wrongful taking, carrying away, and conversion of the sum of $7,200, and, under the old forms of pleading, known as trover. It is, in fact, an action in tort, both in form and substance, and was so considered by counsel and treated by the court when this same cause of action was here at a former term. Sheppard v. Yocum, 10 Or. 406, 418. Whether an attachment would be authorized under the statute if the tort had been waived and the action brought as for money had and received, it is not necessary for us to consider, for the character of the action has, already been determined and is the law of this case. As it is conceded that an attachment cannot issue upon an action in tort, it follows that it was error for the court to refuse to dissolve the attachment.

The order of this court is that the judgment of the court below be affirmed, with costs, but that the attachment be discharged.

SUPREME COURT OF WASHINGTON TERRITORY.

(2 Wash. T. 165)

HADLAN v. OTT and others.

July Term, 1883.

Where a plaintiff whose complaint sets up a contract, a breach of which is admitted by the answer, moves for judgment on the pleadings, thereby waving a jury trial and virtually demanding a trial by the court, in the absence of proof the court can only award him nominal damages.

Error to the district court.

P. P. Carroll, for plaintiff in error.

Judson & Israel, for defendants in error.

WINGARD, J. The following are the complaint and answer in this

case:

Plaintiff complains of defendants, and for cause of action alleges:

First. That on the first day of July, 1881, by a written agreement of lease between plaintiff and defendants, plaintiff rented defendants' property, situated at the south-west corner of Fourth and Washington streets, in the city of Olympia, for the term of one year from that date, at the monthly rent of $22, payable monthly.

Second. That defendants covenanted with plaintiff that said lease should be for one year, with the privilege of five years from the date of the expiration of the first year, to-wit, the first day of July, 1882.

Third. That said lease provided for a written notice by plaintiff to defendants on or before the first day of June, 1882, should plaintiff elect to renew and continue said lease for five years from the expiration of the said first year.

Fourth. That the buildings on said premises were included in said lease, and were used and occupied by plaintiff for a residence, and for the business of a beer-hall, and were leased for such uses and purposes. Such beer-hall was built for plaintiff in consideration of said lease, and for the business of plaintiff.

Fifth. That defendants covenanted with plaintiff to keep said buildings, to-wit, the residence, the beer-hall, and outbuildings, and the said premises, in proper and necessary condition and repair for all proper uses and enjoyment by plaintiff.

Sixth. That said defendants reserved the right to increase said rent to the rate of $25 per month from and after the first day of July, 1882, which rent plaintiff agreed to pay upon continuation and renewal of said lease for five years.

Seventh. That defendants reserved the right to build on.the corner of said premises formed by the alley and Washington street.

Eighth. That plaintiff entered into and took possession of said premises under said lease, and occupied the same for the purpose of residence and business of beer-hall as aforesaid, up to about the eighteenth day of May, 1882, at which time the buildings on said premises were destroyed by fire.

Ninth. That after said fire, and prior to notice hereinafter mentioned, defendants signified to plaintiff their intention to renew said premises for the use and enjoyment of plaintiff, and on the twenty-fifth day of May, 1882, plaintiff notified defendants in writing that it was his intention to renew and continue said lease and retain possession of said premises for the full term of five years, and requested defendants to put said premises in condition and repair for his occupancy and use as residence and business aforesaid.

Tenth. That after said fire and the receipt of said notice defendants met plaintiff and consulted with him in regard to the repairs and renewal of said buildings and premises, and defendants then and there informed him that they would have to charge him, in consideration of the renewal and continuance of said lease, the monthly rent of $25 per month, which rent of $25 per month plaintiff then and there agreed to pay from and after the first day of July, 1882.

Eleventh. That plaintiff has performed each and every of his obligations and covenants to and with defendants, and has regularly paid the rent of $22 per month, and, according to his agreement with defendants, plaintiff has paid the said rent of $25 per month up to and including the month of July, 1882, to the said defendants, who promised to renew the said premises at their meeting aforesaid.

Twelfth. That plaintiff is now, and always has been since entering into said agreement with defendants, ready and willing to perform each and every part of his covenants to and with defendants.

Thirteenth. That defendants now refuse to recognize the renewal and continuance of said lease, and have gone upon and taken possession of said premises, and disseized plaintiff.

Fourteenth. That defendants have erected buildings upon said premises for their own use and profit, contrary to and in violation of their agreement with plaintiff.

Fifteenth. That defendants are in mora, and persist in refusing to give plaintiff the use and enjoyment of said premises.

Sixteenth, That defendants are in mora, and now refuse to repair, restore, and put said premises in proper order and condition for the use of and occupation by plaintiff for residence and business, as aforesaid, and that such refusal is a willful violation and breach of their said agreement with plaintiff. Seventeenth. That the said acts and the said refusal of defendants has caused plaintiff injury, loss, and damage in the sum of $3,000.

Eighteenth. That the said breach of the said defendants caused plaintiff to be thrown out of business, by which plaintiff is further injured and damaged to the extent and sum of $500.

Nineteenth. That said premises were worth to plaintiff, in preference to any other location for residence and business, $600 a year, and the said acts and breach of defendants have deprived plaintiff of such preference, and caused him further and other injury, loss, and damage, in the sum of $3,000. Twentieth. That since the making and entering into said agreement rents have increased, and it has become more difficult and more expensive for plaintiff to secure a suitable place for residence and business, and because of such increase said acts and said breach of defendants have caused plaintiff further and other injury, loss, and damage, in the sum of $1,000.

Twenty-first. That, through inadvertence and mistake, plaintiff and defendants failed to attach their seals to said agreement of lease.

Wherefore, plaintiff prays judgment that defendants properly attach their seals to said lease, and that plaintiff do have and recover of and from defendants the sum of $7,500 actual, pecuniary, punitive, and exemplary damages, and for costs and disbursements.

[Signed]

P. P. CARROLL, Attorney for Plaintiff.

Comes now the above-named Jacob Ott and Elizabeth Ott, defendants in the above-entitled action, and for answer to plaintiff's complaint they allege as follows, to-wit:

First. They admit that on the first day of July, 1881, they entered into a written agreement with plaintiff to lease to said plaintiff the premises described in the complaint, for the period of one year from that date, at the rent of $22 per month, but they deny that the said agreement so made was under seal.

Second. They admit the second, third, and fourth paragraphs of said complaint.

Third. They admit that the agreement set out in the first paragraph of this answer contains an agreement on the part of defendants to keep said premises in proper and necessary repair and condition for all proper use and enjoyment of the same by the plaintiff for the purpose of business and residence aforesaid.

Fourth. They admit the sixth paragraph of the complaint.

Fifth. They admit the seventh and eighth paragraphs of the complaint. Sixth. They deny that after said fire, or at any other time, they, or either of them, signified, or in any way indicated to plaintiff, their intention to renew said premises for the enjoyment or use of plaintiff, except upon the condition that a new lease be made, under and by virtue of which a new dwelling-house was to be erected on the south-east corner of the lot. They admit that they signified their intention to rebuild if plaintiff refused to do so, and that they specified the nature and size of building proposed to be built, and the ground upon which it was to be erected, and that plaintiff refused to have or lease said building, and that in consequence of said refusal they have not erected any buildings on the ground leased to plaintiff. They admit that after the destruction of the buildings occupied by plaintiff he notified them that it was his intention to renew said contract or agreement and to retain possession of said premises for the full term of five years, on and after July 1, 1882. They admit that plaintiff requested defendants to rebuild said buildings for his occupancy and use.

Seventh. They deny that plaintiff has performed the obligation or covenants to be by him kept or performed under said agreement. They admit that he has paid the rent during the time alleged in the complaint. They deny that they, or either of them, ever promised to renew or rebuild the said premises at any meeting, time, or place, whatever, under the lease of July 1, 1881. Eighth. They deny each and every allegation contained in the twelfth, thirteenth, fourteenth, and fifteenth paragraphs of said complaint.

Ninth. They admit that they refused to renew or rebuild said building, after the fire, under said lease; but they allege that they did voluntarily offer plaintiff a new lease, at the same rent, of the premises, and that under a new lease they offered to erect new buildings for the use of said plaintiff, and that plaintiff rejected said offer.

Tenth. They deny each and every allegation contained in the seventeenth, eighteenth, nineteenth, twentieth, and twenty-first paragraphs of the complaint.

(1) And for further answer and defense, by way of counter-claim, the defendants allege: That on the first day of July, 1881, these defendants leased to the plaintiff the premises described in the complaint, together with the buildings thereon situate, being a beer-hall and dwelling-house, for the term of one year from said date; that said plaintiff, for and in consideration of the use and enjoyment of said premises, covenanted and agreed with defendants that he would quit and surrender said premises in as good state and condition as reasonable and proper use of said premises will allow, damages by the elements excepted; that plaintiff entered into said premises, and that at the time of his entry thereof said buildings on said premises were in good con

dition and repair, and were of the value of $1,200; that while plaintiff was so in possession of said premises the said buildings were totally destroyed by fire; that in the month of June, 1882, the said plaintiff quit and surrendered said premises to defendants, but that he did not surrender the same in as good state and condition as he received the same; that plaintiff neglects and refuses to rebuild said buildings; and that the defendants are injured and damaged, by said refusal of the plaintiff to rebuild said buildings, in the full sum of $1,200.

(2) And for further answer and defense by way of counter-claim, the defendants allege: That on the first day of July, 1881, defendants entered into an agreement with plaintiff, whereby they agreed to lease to him the premises described in the complaint for the period of one year, with the privilege of six years; that in said agreement these defendants agreed to keep said buildings in repair, and the plaintiff agreed to pay the stipulated rent each and every month, and to surrender said premises in as good order and condition as he received the same, damage by the elements excepted; that in May, 1882, the buildings on said premises were destroyed by fire, and that, thereafter, plaintiff notified defendants of his intention to hold said premises for the full term of five years from and after July 1, 1882, and that thereupon defendant notified plaintiff that they would charge him rent for the use of said premises (to-wit, the ground) at the rate of $25 per month, and that plaintiff agreed to pay said rent, and did pay the same for the month of July, 1882; that said plaintiff, since said month of July, and now, refuses to pay the said rent, and that there is now due, from the plaintiff to defendants, rent for the months of August, September, October, November, and December, at $25 per month, being $125.

Wherefore, defendants pray for judgment against said plaintiff for the sum of $1,325, and for costs of suit.

[Signed]

JUDSON & ISRAEL, Attorneys for Defendants.

Upon this complaint and answer the plaintiff moved the court for judgment on the pleadings, which motion was granted, and judgment was acordingly rendered by the court in favor of the plaintiff for the sum of six cents damages, and costs and disbursements, to be taxed. This judgment the plaintiff moved the court to set aside, and to grant a new trial, which was refused, and thereupon the plaintiff took a writ of error. We see no error in the judgment. The plaintiff sets up a contract, a breach of which is admitted by the answer. would entitle the plaintiff to nominal damages, which were given. The plaintiff might have had a trial of the questions involved, but he chose to move for judgment on the pleadings, thereby waiving a jury, and virtually demanding a trial by the court. In the absence of proof the court could only award nominal damages.

Let the judgment of the court below be affirmed.

This

GREENE, C. J., and HoYT, J., concurring. We do not think there was any question of right to a jury trial involved in the action of the district court in this case. The pleadings were such as to entitle the plaintiff to judgment without further delay or costs to him, though not for the full damages asked in the complaint. It was a question for him to debate with himself, and for him to determine, whether he would apply for and take such judgment as the defendants were ready