named in the complaint, five of whom are fictitious, and no person appeared or answered in their name. The corporation defendant answered separately, and the twelve other defendants, represented by other attorneys, also appeared and answered. Nine of these twelve subsequently filed a supplemental answer setting forth that they were the owners of the schooner "Gracie S," on or about which the injury occurred, and had made application in the United States district court of the northern district of California for limitation of liability under the provisions of the Revised Statutes of the United States in reference to American merchant marine, and that upon filing their petition in said court a monition was issued in the usual form and served upon the plaintiff and his attorneys, and all persons claiming damages resulting from the accident mentioned in the plaintiff's complaint; and the said court enjoined plaintiff from any further proceedings in the suit in the superior court against the nine defendants claiming to be the owners of said vessel. An appraisement of the schooner was made, the value being fixed 440 at twelve thousand five hundred dollars. The plaintiff filed his answer in the United States district court to the petition of said nine defendants, but said cause has never been tried in the admiralty court, and is still pending.

The plaintiff made no further attempt to proceed in the superior court against the alleged owners of the vessel, but as to the other defendants who had appeared, to wit, the Union Iron Works, Barber, Castle, and Swanson, the plaintiff elected to proceed to trial in the said court. The case was regularly on the calendar of the superior court for trial December 2, 1897, whereupon the defendant the Union Iron Works moved the court to dismiss the action as to it, on the ground that nine of the defendants had instituted proceedings in the federal court for limitation of liability, and that said defendant Union Iron Works was sued as a joint tort feasor with said nine defendants in whose behalf the restraining order had been issued against the plaintiff from proceeding to trial. The court took the motion under advisement, and the trial of the action was continued till April 4, 1898, at which time plaintiff endeavored to proceed with the trial as to said defendants other than the nine who were the owners of said vessel. The Union Iron Works thereupon renewed its motion to dismiss the action upon the grounds stated, and said defendants Barber, Castle, and Swanson, also on the same grounds, moved to dismiss the action. The court granted the motion of said four defendants, and a judgment of

dismissal was accordingly entered. The appeal is from this judgment of dismissal, on a bill of exceptions.

The question presented on the appeal is whether the plaintiff,' with a cause of action, alleged in the complaint to be for fifty thousand dollars damages, is barred from recovery of a proper measure of damages as against the respondents herein, in conse quence of the proceedings in the federal court by the nine defendants, the owners of said vessel, in which their liability is limited to the appraised value of said vessel.

The plaintiff has not actually received satisfaction in any amount, nor what in law is deemed the equivalent of satisfaction.

The law as to the liability of joint tort feasors is thus stated by Black on Judgments: "The general rule followed in America 441 is that the liability of two or more persons who jointly engage in the commission of a tort is joint and several, and gives the same rights of action to the person injured as a joint and several contract. Consequently, a judgment recovered against one of two joint tort feasors, remaining unsatisfied, is no bar to an action against the other for the same tort": 2 Black on Judgments, sec. 777. Judge Cooley, in his work on Torts, second edition, 159, says: "The rule laid down by that eminent jurist, Kent, in Livingston v. Bishop, 1 Johns. 290, 3 Am. Dec. 330, which has since been generally followed in this country, is that the party injured may bring separate suits against the wrongdoers and proceed to judgment in each, and that no bar arises to any of them until satisfaction is received. . . . . It is to be observed in respect to the point above considered, where the bar accrues in favor of some of the wrongdoers, by reason of what has been received from or done in respect to one or more of the others, that the bar arises, not from any particular form that the proceeding assumes, but from the fact that the injured party has received satisfaction, or what in law is deemed the equivalent." In Dawson v. Schloss, 93 Cal. 199, the plaintiff had recovered a judgment in the sum of five thousand dollars against Schloss and Hinkle in an action for malicious prosecution. A new trial was granted as to defendant Schloss, which resulted in a verdict and judgment against Schloss for three thousand dollars, and he appealed from the judgment. At the time of the second trial the original judgment for five thousand dollars against Hinkle was of record and unsatisfied. It was contended by the appellant that no judgment should have been rendered against Schloss on the new trial, so long as the orig

inal judgment existed against Hinkle; that while separate suits may be brought against each of joint tort feasors, yet that, if the defendants are sued jointly, there can be but one verdict and judgment. This court answered this contention that "such is not the prevailing rule in the United States," quoting from Judge Cooley the above-cited paragraph. The court, continuing, says: "There is no pretense that any part of the judgment against Hinkle has been paid or satisfied, or even that execution has been taken out upon the judgment." Nichols v. Dunphy, 58 Cal. 605, was an action in tort. A judgment had 442 been obtained against defendants. One of the defendants appealed and secured a reversal of the judgment. Thereupon the other defendant against whom execution had been taken out moved for an order quashing the execution. That motion was granted on the theory that there could not be a several judgment when the action had been joint. Discussing the action of the court below this court says: "We think the court erred in quashing the execution against Carmen. The judgment against her was unaffected by the appeal of her codefendant and the subsequent proceedings thereon." In Butler v. Ashworth, 110 Cal. 614, it is said: "If one be injured by a tortious act, he is entitled to compensation for the injury suffered, and, if several persons are guilty in common of the tort, the injured one has his right of action for damages against each and all of the joint tort feasors, and may at his election sue them individually or together." In case one of the wrongdoers has become bankrupt or insolvent, the effect as to him would be to limit the liability to the available assets of his estate, which might be merely nominal. His bankruptcy proceeding, however, would not have the effect of discharging the solvent wrongdoers. Nothing short of satisfaction in some form constitutes a bar in a proceeding like the present.

The judgment is reversed and the cause remanded.

Harrison, J., and Garoutte, J., concurred.

TORTS JOINT AND SEVERAL LIABILITY.-When one has received an actionable injury at the hands of two or more wrongdoers, all are jointly and severally liable to him for the full amount of damages occasioned by the injury: Wisconsin Cent. R. R. Co. v. Ross, 142 Ill. 9, 34 Am. St. Rep. 49. And a judgment against one of several wrongdoers unsatisfied is not a bar to the maintenance of an action against the others: Russell v. McCall, 141 N. Y. 437, 38 Am. St. Rep. 807. Compare Petticolas v. Richmond, 95 Va. 456, 64 Am. St. Rep. 811.

DENNIS v. FIRST NATIONAL BANK OF SEATTLE. [127 California, 453.]

ATTACHMENT AGAINST NATIONAL BANKS.-No attachment can issue from a state court against a national bank, and all of the attachment laws of the several states must be read as if they contained a proviso in express terms that they were not to apply to suits against national banks.

ATTACHMENT-NATIONAL BANKS-POWERS OF CONGRESS.-Congress has power to protect national banks and to regulate their trade and intercourse with others by granting them special immunities, and protecting them against attachment and other proceedings in state courts, by which their efficiency may be impaired.

Dillon & Dunning, for the appellant.

Mulford & Pollard, for the respondent.

454 COOPER, C. Appeal from order dissolving attachment. The complaint shows the defendant to be a corporation organized under the laws of the United States as a national bank. After the filing of the complaint and an affidavit on behalf of the plaintiff, a writ of attachment was issued and placed in the hands of the sheriff. Defendant made a motion, upon proper notice, for an order dissolving the attachment, upon the ground, among others, that the superior court was without jurisdiction to issue said writ and that the same was improperly issued.

By the amendment of March 3, 1873 (U. S. Rev. Stats., sec. 5242), to section 57 of the national banking act of June 3, 1864, an attachment cannot issue against a national bank before judgment. 455 The amending act reads: "That section 57 . . . . be amended by adding thereto the following: 'And provided further that no attachment, injunction, or execution shall be issued against such association or its property before final judgment in any suit, action, or proceeding or municipal court.""

The words used are plain and mandatory. The supreme court of the United States, in construing the statute in Pacific Nat. Bank v. Mixter, 124 U. S. 726, speaking through the chief justice, after reviewing all the statutes bearing upon the subject, said: "That no attachment should issue from state courts against national banks, and all the attachment laws of the states must be read as if they contained a proviso in express terms that they were not to apply to suits against national banks.”

This case has since been followed and the same construction placed upon the statute by the state and federal courts without a single exception that has been brought to our knowledge: Garner v. Second Nat. Bank of Providence, 66 Fed. Rep. 369; Safford v. National Bank of Plattsburg, 61 Vt. 373; First Nat. Bank of Kasson v. La Due, 39 Minn. 415; Bank of Montreal v. Fidelity Nat. Bank, 112 N. Y. 667; Rosenheim Real Estate Co. v. Southern Nat. Bank (Tenn. Ch., Nov. 20, 1897), 46 S. W. Rep. 1026; Freeman Mfg. Co. v. National Bank of the Republic, 160 Mass. 398.

The section is not unconstitutional. It is not claimed that the act of Congress authorizing national banks is unconstitutional. If Congress has power to authorize the creation of the national banks, it has power to protect them and to regulate their trade and intercourse with others by granting them special immunities, and protecting them against suits or proceedings in state courts by which their efficiency would be impaired: Chesapeake Bank v. First Nat. Bank of Baltimore, 40 Md. 269, 17 Am. Rep. 601; Freeman Mfg. Co. v. National Bank of the Republic, 160 Mass. 398.

The process of attachment under our code is a creature of the statute. It has always been held that the legislature might provide, not only the cases in which an attachment might issue, but the classes of property upon which it might be levied. It has accordingly been held that money in the custody of the law is not the subject of attachment. This court has held that an act providing for the dissolution of attachments levied within two 456 months before the filing of a petition in bankruptcy is constitutional: Baum v. Raphael, 57 Cal. 361.

The legislature of this state has provided, among other things, that courthouses, certain public buildings, and many classes of property shall be exempt from execution. It might provide that no attachment should issue in any case. We see no reason why the legislature of the nation has not the power to provide that no attachment shall issue against any bank created and existing under its authority.

The order should be affirmed.

Haynes, C., and Chipman, C., concurred.

For the reasons given in the foregoing opinion the order is affirmed. Henshaw, J., Temple, J., McFarland, J.