that they should read as stated in the margin.2 [3] In the light of these principles a comparison may be made of the original powers [1, 2] The principles of law by which to of the defendant with those described in the determine whether acts and conduct are amendment to them. The initial power of within or without the bounds of the power "quarrying and preparing for the market of a corporation have been the subject of of stone" is enlarged to include buying, selladjudication and are not unfamiliar. A cor- ing and dealing in the same, and to acquiring, poration has power to do such business only owning or leasing lands containing stone or as it is authorized to do by its charter and other lands. While doubtless it would be no other. A corporation cannot usurp func- within the original power in case of emertions not granted to it, nor stretch its lawful gency, or under exceptional or unusual cirfranchises beyond the limits of their reason- cumstances, to purchase finished or other able intendment. It cannot engage in mat-stone in order to fill its orders (Lyndeborough ters foreign to the objects for which it was Glass Co. v. Mass. Glass Co., 111 Mass. 315), incorporated. Its main business must be there would be great difficulty in holding that confined to those operations which appertain it might regularly and as a part of its recogto the general purposes for which it was or- nized everyday business conduct a buying ganized and which are defined in its char- and selling of stone quarried or finished by ter. It is not clothed with all the capacities others. That is plainly within the purview of of a natural person or of an ordinary part- the amendment. The general contracting for nership. It is restricted to such as are con- the construction, alteration and repair of all ferred by its grant of the right to exist. Its kinds of structures, including buildings, lawful business may not vary materially docks, sea walls, breakwaters and canals, is from the objects for which it was created. a comprehensive statement of powers reIt may, however, enter into contracts and specting a department of industry which engage in operations which, although not ex- hardly could be described rightly as merely pressly nominated in its charter, are rea- ancillary to the main business of quarrying sonably incident to its objects and subsidiary and finishing stone for market. The cirto its chief purpose. Whatever transactions cumstance that such contracts can be entered are fairly incidental or auxiliary to the into only so far as "may be necessary or main business of the corporation and neces- advantageous for placing in such structures sary or expedient in the protection, care and stone quarried or prepared by the company" management of its property, may be under- is at most an exceedingly elastic limitation uptaken by the corporation and be within the on the broad power previously stated. It well scope of its corporate powers. Brown v. may be that the nature of present conditions Winnisimmet Co., 11 Allen, 326; Davis v. of trade is such that the contracting business Old Colony R. R., 131 Mass. 258, 41 Am. Rep. may be profitably joined with that of quarry221; Hotchkin v. Third Nat. Bank of Syra- ing and finishing stone. But that factor does cuse, 219 Mass. 234, 106 N. E. 974; Jackson- not embrace the one as simply subsidiary to ville, Mayport, Pablo Ry. & Navigation Co. the other, or prevent the combination of the v. Hooper, 160 U. S. 514, 524-526, 16 Sup. two from being a change from one. The conCt. 379, 40 L. Ed. 515; Meredith v. N. J. struction of railroad, telephone and telegraph Zinc & Iron Co., 59 N. J. Eq. 257, 44 Atl. 55, lines on its own estates, if necessary for the affirmed in 60 N. J. Eq. 445, 50 Atl. 1119; conduct of the principal business of quarrying Woods Motor Vehicle Co. v. Brady, 181 N. and finishing, doubtless might be found to be Y. 145, 153, 73 N. E. 674. incidental to it. But the same can scarcely be said respecting the power "to construct, equip, purchase, sell, own and lease vessels of every nature and description" so far as necessary for the purposes of the company. Navigation upon the high seas with every kind of craft, for the purpose of delivering its product, cannot with any due weighing of words and ideas be considered as incidental to the business of quarrying stone any more than it can be similarly regarded as to any other kind of manufacture or trade. The right to buy and sell shares of capital stock, bonds and securities of other corporations, and to carry on the business of dealing in general merchandise, seem to extend outside the ambit of quarrying. Williams v. Johnson, 208 Mass. 544, 95 N. E. 90; Gloucester Water Co. 2 "The purposes for which said corporation is established are to quarry stone and prepare the same for market, to buy, sell and deal in the same; to acquire, own or lease any lands containing stone, or other lands, for any purposes of the company; to enter into and carry out contracts for the construction, alteration and repairing of all kinds of structures, including buildings, roads, docks, breakwaters, seawalls, aqueducts, canals and other water ways, so far as said contracts may be necessary or advantageous for placing in any such structures stone quarried or prepared by the company; to lay out and construct railroads, railways, telephone and telegraph lines, and to construct, equip, purchase, sell, own or lease vessels of every nature and description, so far as such railroads, railways, lines and vessels may be necessary and appurtenant to any purposes of the company; and as incidental to the other purposes of the company to buy, sell, and deal in, general merchandise, and hold, purchase, or otherwise acquire, and sell or otherwise dispose of, shares of the capital stock and bonds or other securities of other corporations, and to exercise all the rights of ownership thereof, including the right of voting; to do all and everything necessary or convenient for the accomplish- v. Gloucester, 179 Mass. 365, 379, 60 N. E. ment of any of the purposes or objects or powers above mentioned or incidental thereto. "The corporation is to have the power to conduct its business both within and without the commonwealth, and may have and maintain such offices as may be necessary therefor." 977. The power to conduct its business in places outside this commonwealth, where it would not be under the protection of our laws, tends to disclose a purpose to alter the kind as well as to expand the amount of the business to be carried on. Whatever may be said as to some of these new elements introduced into the chartered functions of the defendant by the amendment, if they stood alone, the collective effect of all of them is to work "a change in the nature of its business" within the meaning of those words as used in our statute. dict shall be set aside as excessive until the prevailing party has first been given an opportunity to remit so much thereof as the court adjudges is excessive, an indorsement on a motion that considering the exceedingly slight character of the plaintiff's direct physical injury, and the greatly disproportionate and seemingly exaggerated effects of nervous shock claimed to have resulted therefrom, the fact that it was the first cause tried by the jury, and the unusual nature of the address of plaintiff's counsel which their prejudice, that the damages assessed were might have unduly excited their sympathy or not in accordance with the evidence, but contrary to the weight thereof, and a setting aside of a verdict for plaintiff and ordering a new trial was ground of excessive damages, but a setting aside not the setting aside of the verdict solely on the of the verdict for various reasons. [Ed. Note. For other cases, see New Trial, Cent. Dig. § 330; Dec. Dig. 163(1).] 2. TRIAL 133(1)-DUTY OF TRIAL JUDGE [4] The plaintiff is not barred by estoppel or laches. The present proceeding does not seek relief from acts to which the plaintiff has given express or implied assent, but which are now averred to have been ultra vires the corporation. It rests wholly upon the privilege afforded by the statute. The plaintiff did not directly or indirectly assent to the vote of which complaint is now made. On the contrary, she opposed, in the stock- ARGUMENT. holders' meeting the vote amending the state-over a jury trial to take note of improper arguIt is the plain duty of the judge presiding ment of corporate purposes and since has con- ments and counteract their effect, and to see sistently asserted her rights under the stat- that a fair trial is had. and that no unjust adute. Because she may have profited by some vantage is taken by either side, and, in his discretion, he may cause objectionable conduct to of the acts of the defendant, now included in cease at once, and may deal with it in any the amendment, before the vote was passed, other proper way to the end that no wrong may does not bar her from enforcing the rights be done. conferred by the statute growing out of that vote. Dig. § 316; Dec. Dig. 133(1).] of Boston, for defendant. [5] The bill in equity is the appropriate remedy. While relief by mandamus has been carried rather far in this commonwealth Action by Mary A. Tildsley against the Bos(Longyear v. Hardman, 219 Mass. 405, 406, ton Elevated Railway Company. Verdict for 106 N. E. 1012), it is not adapted to the sit- plaintiff was set aside, and new trial ordered, uation here presented. It is conceivable that and plaintiff excepts. Exceptions overruled. in some instances injunction might be neces- Jas. F. Creed and John J. Mansfield, both sary. The flexibility of equity is better adapt-of Boston, for plaintiff. John E. Hannigan, ed to the wrong of which complaint is made and to effectuate the kind of relief which it is the purpose of the statute to confer upon the objecting stockholder, although perhaps no case exactly like this may be found among our decisions. See New England Mut. Life Ins. Co. v. Phillips, 141 Mass. 535, 6 N. E. 534; Haupt v. Rogers, 170 Mass. 71, 48 N. E. 1080; Gould's Case, 215 Mass. 480, 102 N. E. 693, Ann. Cas. 1914D, 372. An interlocutory decree may be entered for the plaintiff in the bill in equity according to the second prayer, directing the appointment of an appraiser by the defendant. Upon the finding of the appraisers being made, final decree may be entered for the amount by them ascertained, with costs. The petition for the writ of mandamus may be dis missed. So ordered. (224 Mass. 117) TILDSLEY v. BOSTON ELEVATED RY. CO. (Supreme Judicial Court of Massachusetts. Suffolk. May 18, 1916.) 1. NEW TRIAL 163(1)—VERDICT-SETTING ASIDE. RUGG, C. J. This case was tried before a judge of the superior court sitting with a jury, where a verdict was rendered for the plaintiff. A motion to set aside the verdict was filed, alleging (1) that it was against the weight of the evidence, and (2) that "the damages assessed were not in accordance with the evidence but contrary to the weight thereof." Upon that motion the judge made this indorsement: "Considering the exceedingly slight character of the direct physical injuries sustained by the plaintiff, and the greatly disproportionate and claimed to have resulted therefrom, and the seemingly exaggerated effects of nervous shock fact that this was the first cause tried by the jury, and that they necessarily lacked experience, and considering the unusual nature of the address to the jury by the counsel for the plaintiff, which well might have unduly excited their sympathy on the one hand and their prejudice on the other, I am of the opinion, and I find, that the damages assessed were not in accordance with the evidence, but contrary to the weight thereof. Defendant's motion is allowed. the verdict is set aside, and a new trial ordered." [1, 2] The question to be decided is the Under St. 1911, c. 501, providing that a meaning of this statement. Its concluding judge in granting a motion for a new trial shall sentence, standing by itself, is unmistakable. file a statement setting forth the grounds on which the motion is granted, and in view of It is a direct and complete setting aside of Rev. Laws, c. 173, § 112, providing that no ver- the verdict as a whole and directing an en For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes not served with process within the state and who does not appear. [Ed. Note.-For other cases, see Judgment, Cent. Dig. § 33; Dec. Dig. 17(11).] 3. JUDGMENT 818(1)-FOREIGN JUDGMENT -SHOWING OF INVALIDITY. credit" clause of the federal Constitution, or of any forum, either under the "full faith and under general principles of international comity. [Ed. Note.-For other cases, see Judgment, Cent. Dig. §§ 1458, 1459; Dec. Dig. 4. APPEARANCE 9(7)-SPECIAL 818(1).] APPEAR ANCE STATUTE. Rev. Laws, c. 170, §§ 1, 6, 9, touching proceedings against absent defendants, does not impose upon a nonresident defendant whose property within the jurisdiction has been attached without service upon him herein the burden of entering a general appearance to protect his property rights, so far as they are put in peril by the attachment of his property upon the original writ, and he can appear specially to defend as to the property without subjecting himself to the jurisdiction of the court. tirely new trial upon every issue. All that which precedes the final sentence is somewhat lacking in perspicuity. It creates con[Ed. Note.-For other cases, see Judgment, Cent. Dig. § 26; Dec. Dig. 17(3).] fusion but does not go quite far enough to cut down the decisive conclusion reached. 2. JUDGMENT 17 (11) JUDGMENT IN REMNONRESIDENCE OF DEFENDANT. St. 1911, c. 501, provides that a judge, "grantWhen property of a nonresident defendant ing the motion for the new trial shall file is attached within the state, valid judgment a statement setting forth fully the grounds may be entered, enforceable against such propupon which the motion is granted." The in-erty, but it possesses no further validity, unless such nonresident defendant is served perdorsement is a compliance with this statute. sonally with process within the state, or apEmphasis doubtless is placed on excessive pears. damages and the finding is that they are not in accordance with the evidence. But reference is made, also, to other matters. Tne character of the physical injury, said to have A nonresident defendant may ignore probeen slight, may have been incompatible with ceedings in courts of another jurisdiction when the manner of the accident, as testified to by not served with process, and may show the invathe plaintiff. The inexperience of the jurylidity of the judgment against him in the courts in conjunction with the general verdict may have shaken the belief of the judge in its freedom from bias, misapprehension or prejudice on liability as well as on damages. Scannell v. Boston Elev. Ry., 208 Mass. 513, 94 N. E. 696. The reference to the unusual nature of the argument in behalf of the plaintiff bears as strongly upon liability as upon any other issue. It is the plain duty of a judge presiding over a jury trial, to take note of improper arguments and counteract their effect. It is his primary obligation to see that a fair trial is had and that no unjust advantage is taken by either side. Whitney v. Wellesley & Boston St. Ry., 197 Mass. 495, 84 N. E. 95; Plummer v. Boston Elev. Ry., 198 Mass. 499, 514, 84 N. E. 849. He may in his discretion cause the objectionable conduct to cease at once. But he may deal with it in any other proper way to the end that no wrong be done. Commonwealth v. Richmond, 207 Mass. 240, 250, 93 N. E. 816. It is provided by R. L. c. 173, § 112, that no verdict shall be "set aside as excessive until the prevailing party has first been given an opportunity to remit so much thereof as the court adjudges is excessive." is manifest that the judge did not intend to set aside this verdict on the ground of excessive damages, for he fixed no sum to be remitted at the election of the plaintiff. Moreover, it is conceivable that the finding as to damages may be so violently contrary to the evidence as to taint the verdict as an entirety and require a complete new trial. Therefore, we are brought to the conclusion that the verdict was set aside as a whole. Edwards v. Willey, 218 Mass. 363, 105 N. E. 986. Exceptions overruled. (224 Mass. 14) It CHESHIRE NAT. BANK v. JAYNES et al. (Supreme Judicial Court of Massachusetts. Suffolk. May 17, 1916.) 1. JUDGMENT 17(3)-PERSONAL JUDGMENT --NONRESIDENCE OF DEFENDANT. A valid personal judgment cannot be rendered against a nonresident defendant who is [Ed. Note. For other cases, see Appearance, Cent. Dig. § 51; Dec. Dig. 9(7).] 5. APPEARANCE ANCE. 9(7) SPECIAL APPEAR A nonresident defendant whose property has been attached within the jurisdiction without service upon him herein, independent of statute, has not the burden of entering general appearance, and so subjecting himself to the jurisdiction of the court, to protect his property rights imperiled by the attachment on the original writ. [Ed. Note.-For other cases, see Appearance, Cent. Dig. § 51; Dec. Dig. 9 (7).] 6. JUDGMENT PEL. 666-RES JUDICATA-ESTOP The doctrine of res judicata does not operate as an estoppel unless it is mutual and affects both parties alike, and the bar of whatever judgment may be rendered where a nonresident defendant appears specially merely to protect his interest in attached property extends no further against plaintiff than against defend ant. [Ed. Note. For other cases, see Judgment, Cent. Dig. § 1180; Dec. Dig. 666.] 7. APPEARANCE 9(7)-SPECIAL APPEAR ANCE-WAIVER-STATUTE. In an action against a nonresident defendIant whose property was attached in the jurisdiction without service upon him herein, where defendant, after entry of the order of the superior court that he could not appear specially, but must submit to the jurisdiction generally if he desired to make any contest, answered generally, attempting to continue his special appearance to contest plaintiff's right to subject the attached property, and filed cross-interrogatories, he did not waive his special appearance and submit himself to the jurisdiction, despite Rev. Laws, c. 173, § 118, providing that after For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes defendant has appeared and answered to the merits no defect in process or service affects the jurisdiction. [Ed. Note.-For other cases, see Appearance, Cent. Dig. § 51; Dec. Dig. 9(7).] Exceptions from Superior Court, Suffolk County; Marcus Morton, Judge. Action by the Cheshire National Bank against Charles W. Jaynes and trustees. There was a finding for plaintiff, and defendants bring exceptions. Exceptions sustained. Bates, Nay, Abbott & Dane, Robt. E. Buffum, and John E. Benton, all of Boston, for plaintiff. Warner, Warner & Stackpole, of Boston, for defendants. validity in the courts of any forum, either under the "full faith and credit" clause of the federal Constitution or under general principles of international comity. Old Dominion Copper Mining & Smelting Co. v. Bigelow, 203 Mass. 159, 206-214, 89 N. E. 193, 40 L. R. A. (N. S.) 314; Brown v. Fletcher's Estate, 210 U. S. 82, 28 Sup. Ct. 702, 52 L. Ed. 966. Perhaps it would be competent for the Legislature to enact, without violating any provision of the federal Constitution, that no one may voluntarily appear in our courts to contest any question there pending, even when some of the property is held under attachment, without at the same time sub mitting himself wholly to the jurisdiction of our courts for all purposes of the proceeding. York v. Texas, 137 U. S. 15, 11 Sup. Ct. 9, 34 L. Ed. 604; Western Indemnity. Co. v. Rupp, 235 U. S. 261, 272, 35 Sup. Ct. 37, 59 L. Ed. 220; Coe v. Armour Fertilizer Works, 237 U. S. 413, 426, 35 Sup. Ct. 625, 59 L. Ed. 1027. RUGG, C. J. This is an action of contract brought by a national banking corporation domiciled in the state of New Hampshire against a resident of the state of Connecticut, upon whom no personal service has been made, but whose property has been attached by trustee process under the statute making provision for reaching the property of a nonresident. R. L. c. 170. The defendant filed a special appearance, whereby he has undertaken by apt words not to submit himself generally to the jurisdiction of the court, but only so far as is necessary in order to pro-Busch Brewing Ass'n, 215 Mass. 341, 102 N. tect his interest in the goods, effects and credits in the hands of the alleged trustees. In proceedings, which need not be narrated in detail, the superior court has ruled that a non-resident defendant could not "appear, answer to the merits and defend the case for the purpose of protecting his rights in property trusteed or attached and at the same time by 'special appearance' repudiate the jurisdiction of the court. If he is in court claiming its protection upon the merits of the case, he must submit to the obligations which the court places upon every litigant before it." The correctness of this ruling is challenged. [1-3] This precise question does not appear to have been decided. It has been determined that a valid personal judgment cannot be rendered against a nonresident defendant who is not served with process within the state and who does not appear. When property of a non-resident defendant is attached within the state, valid judgment may be entered, enforceable against such property but possessing no further validity unless such non-resident defendant is served personally with process within the state, or appears. Lowrie v. Castle, 198 Mass. 82, 89, 83 N. E. 1118; Eliot v. McCormick, 144 Mass. 10, 10 N. E. 705; Pennoyer v. Neff, 95 U. S. 714, 24 L. Ed. 565; Freeman v. Alderson, 119 U. S. 185, 7 Sup. Ct. 165, 30 L. Ed. 372. A nonresident defendant may ignore the proceedings in the courts of another jurisdiction when not served with process in that other jurisdiction and when no valid attachment of his property is made. When attempt is made to affect his rights by judgment obtained in the absence of service of process or attachment of property, he may show its in [4] But that question is not now presented and expressly is left open. R. L. c. 170, § 1, which governs this matter, makes no such provision. This section has been construed with some strictness. Roberts v. Anheuser E. 316. Its final clause does not deny full effect to a judgment rendered after a genera! appearance, even without service. Gahm v. Wallace, 206 Mass. 39, 91 N. E. 1002. But it does not disclose a purpose to impose upon a non-resident defendant the burden of enter ing a general appearance in order to protect his property rights so far as they are put in peril by effectual attachment of his property words cover a situation like that now presentupon the original writ. It does not by apt ed. So far as there is implication from the words used, it seems to be that the action shall not be maintained without service with process within this commonwealth (unless there is voluntary general appearance) except so far as it may affect property held under effectual attachment. The provisions for notice to a non-resident defendant in sections 6 and 9 of the same chapter, do not manifest a purpose to compel him to appear generally if he appears at all. Indeed, reading sections 1, 6 and 9 together, and giving them all appropriate force, they are quite satisfied by interpreting them to mean that when effeetual attachment of property of a non-resident is made, the best kind of notice which can be given under the circumstances shall issue in order to afford him opportunity to come into court and be heard on the question whether the property so attached ought to 1 Section 1. A personal action shall not be maintained against a person who is not an inhabitant of this commonwealth unless he has been served with process within this commonwealth or unless an effectual attachment of his property within this commonwealth has been made upon the original writ, and in case of such attachment without such service, the judgment shall be valid to secure the application of the property so attached to the satisfaction of the judgment, and not otherwise. be held to satisfy a judgment in accordance defeat to the defendant. But this consewith the terms of section 1. 58 L. Ed. 1363. "The fundamental requisite of due process of law is the opportunity to be heard." Grannis v. Ordean, 234 U. S. 385, 394, 34 Sup. Ct. 779, "That to condemn without a hearing is repugnant to the due process clause of the Fourteenth Amendment needs nothing but statement." Riverside Mills v. Menefee, 237 U. S. 189-193, 35 Sup. Ct. 579, 59 L. Ed. 910. [5] Treating the question as one of general law, quite uncontrolled by statute, the same result is reached. It was said by Chief Justice Parsons in Bissell v. Briggs, 9 Mass. 462, at 468, 6 Am. Dec. 88: "In order to entitle the judgment rendered in any court of the United States to the full faith and credit mentioned in the federal Constitution, the court must have had jurisdiction, not only of the cause, but of the parties. To illustrate this position, it may be remarked that a debtor living in Massachusetts may have goods, effects, or credits in New Hampshire, where the creditor lives. The creditor there may lawfully attach these, pursuant to the laws of that state, in the hands of the bailiff, factor, trustee, or garnishee, of his debtor: and on recovering judgment, those goods, effects, and credits, may lawfully be applied to satisfy the judgment; and the bailiff, factor, trustee, or garnishee, if sued in this state for those goods, effects, or credits, shall in our courts be protected by that judgment, the court in New Hampshire having jurisdiction of the cause for the purpose of rendering that judgment, and the bailiff, factor, trustee, or garnishee, producing it, not to obtain execution of it here, but for his own justification. If, however, those goods, effects, and credits, are insufficient to satisfy the judgment, and the creditor should sue an action on that judgment in this state to obtain satisfaction, he must fail, because the defendant was not personally amenable to the jurisdiction of the court rendering the judg ment. And if the defendant after the service of the process of foreign attachment, should either in person have gone into the state of New Hampshire, or constituted an attorney to defend the suit, so as to protect his goods, effects, or credits, from the effect of the attachment, he would not thereby have given the court jurisdiction of his person; since this jurisdiction must result from the service of the foreign attachment. It would be unreasonable to oblige any man living in one state, and having effects in another state, to make himself amenable to the courts of the last state, that he might defend his property there attached." This decision was one of the earliest upon that subject in this country. It always has been recognized as a leading authority. See Pennoyer v. Neff, 95 U. S. 714, 731, 24 L. Ed. 565. While the allusion to the injustice of requiring a nonresident to surrender himself wholly to the jurisdiction of the courts of a foreign state, in order to defend his property there attached, was by way of illustration rather than exact adjudication, it was employed to illuminate an essential step in the reasoning by which the decision was reached, and therefore was something more than a mere obiter dictum. It states a sound principle. It is decisive of the question at bar. [6] It may be urged that to reach this conclusion is to impair the doctrine of res judicata, in that it compels a plaintiff to try the merits of his case and be barred by his failure, while no such decisive result inheres in The quence does not follow. It is elementary law that the doctrine of res judicata does not operate as an estoppel unless it is mutual and affects both parties alike. Old Dominion Copper Mining & Smelting Co. v. Bigelow, 203 Mass. 159, 217, 89 N. E. 193, 40 L. R. (N. S.) 314; Id., 225 U. S. 111, 127, 32 Sup. Ct. 641, 56 L. Ed. 1009, Ann. Cas. 1913E, 875. In a situation like that at bar, the plaintiff the defendant. The bar of whatever judg put his cause in issue no further than does defendant appears specially merely for the ment may be rendered, where a non-resident purpose of protecting his interest in attached property, extends no further against the plaintiff than it does against the defendant. It relates only to the property of the defendant held under effectual attachment. record of the judgment and the form of the execution when rendered against the defendaut, explicitly show this. It runs only against the property so attached, and not otherwise. The record of the judgment when against the plaintiff should be equally categorical in showing that the plaintiff has failed to establish his case only against the property attached, and not that he has failed generally to establish a cause of action against the defendant. In such case the question of the general liability of the defendant to the plaintiff has not been put in issue, because the defendant has chosen to rely on his strict right by confining his appearance to the protection of the property alone and not to submit himself to the general jurisdiction of the court. When a defendant pursues this course he cannot at the same time claim the boon of general judgment if he wins, and the shelter of his special appearance if he loses. He cannot gamble with jurisdiction and invoke its benefit if favorable and repudiate its force if adverse. He must select his ground in advance and abide by the issue. If he stands only upon the special ground, he is entitled upon success only to a judgment which protects that property but which goes no further and will afford no shield against further prosecution of the plaintiff's claim against other property or against him personally, provided effectual attachment or personal service may be made. The plaintiff, by instituting his action and making the effectual attachment of property, offers to the defendant the alternative, first, of coming into court generally and settling all issues by submitting to the jurisdiction of the court with the attendant advantage of ending that cause of action by a final judgment, or second, of appearing specially and protecting only the property attached and settling only that question and nothing else. The adjudication will be exactly commensurate with the alternative accepted by the defendant. This result is one of fairness and justice to both parties. [7] It is contended that because the defendant, after the entry of the order of the |