for advances, Mary P. Ewing, one of his children and heirs, requires from Burnett title to an interest in the lands covered by the warranty of her father. The decree defeats the title to these lands, and allows the heir to recover upon the footing of the adverse interest so acquired.

We maintain she is estopped. (Co. Lit., 325.) 10. We claim, lastly, that the decree is er roneous as against Williams, who well maintains the ground of a bona fide purchaser, without notice.

The bill alleges notice, by Williams, of all the fraudulent combinations and transactions imputed to Baum and Oliver.

These allegations are met with full and unequivocal denials in the answer, which sets forth all the particulars required for the defense of a purchaser without notice.

There is not a particle of proof to impeach this answer, or to show that Williams had any knowledge of the fraudulent acts attempted to be made out against Oliver and Baum. He purchased an interest in the Port Lawrence Company in March, 1819. He was the agent to make the relinquishment of 1 and 2 in September, 1821, and does not appear again in the case until May, 1831, when he makes his first purchase from Oliver. He finds Oliver in vested with the legal title to 1 and 2, which had been relinquished ten years before.

It is said Williams was one of the cestuis whose property was wrongfully conveyed by their trustee, Baum; that he must be presumed 373*] *to have knowledge that Baum had no authority to sell or mortgage the property.

In the first place, we do not see, if this be so, how it affects his title to tracts 1 and 2. The trust, as to them, ceased at the relinquish ment. Ten years after, he finds Oliver invested with the legal title, and then purchases from him.

Will it be said that the recitals in the patent to Oliver for tracts 1 and 2 affect him with notice?

. The patent issued to Oliver on the 4th March, 1831, and recites, that, under the provisions of the Act of Congress of January 13, 1830, "to authorize the exchange of certain lots of land between the University and Martin Baum and others," the University had transferred 1 and 2 to Oliver, as the assignee of Baum.

In point of fact, Oliver was not the assignee of Baum, of tracts 1 and 2. No one pretends that this recital is not a mistake; nor can it be said the recitals in the act of Congress notified Williams that the phrase "Martin Baum and others" meant Martin Baum and the other members of the old Port Lawrence Company. The most conclusive argument to show it im plies no such notice, is found in the testimony of Judge Burnett, who, like Williams, was a member of that company, and, being in the Senate of the United States, voted for the law, and had no idea that“ Martin Baum and others' included the company.

As to the other tracts, Oliver held the patents without any recitals. Williams knew a part of them had once belonged to the Port Lawrence Company, but he knew nothing to impeach Oliver's title.

Mr. Pirtle, for appellees, denied that this was a case of partnership, and commented on the

authorities referred to by Mr. Stanberry, which, he contended, did not justify the position. He then traced the history of the transaction, beginning with the purchase at the public sale, and said that courts will not enforce agreements in fraud of the law, or against public policy, is true. That an agreement not to bid at a sheriff's sale or at an auction of an executor would be against public policy, has been decided. The doctrine on this subject was thoroughly examined in the case of Jones v. Caswell (3 Johns. Cas., 29; 1 McLean's Rep., 300, 302; 2 McLean's Rep., 276.et seq.; 1 Story's Eq., 290.) But this doctrine has no application to this case. To apply it now, even if there were fraud, would be very much like a plea to an action of trover that the plaintiff had obtained the property in question of a stranger by deceitful practices, which would be absurd. This suit is not to enforce a contract. The contract had been completed years before the matters charged against the defendants.

There is nothing corrupt in such an agreement as that made by the parties in the instance stated in the plea. Nothing is more common than for several persons to join in a purchase of lands or other valuable property at [*374 auction sales. There was no more harm in forming the Port Lawrence Company than there was in forming the Baum and Piatt companies. There was no agreement that one, for a certain price, should not bid against the other, but that certain tracts, desired by both, should be purchased for both.

This was a great sale advertised over the Union, at which great numbers of persons were collected from different quarters. It was not like a neighborhood sale of chattels by an officer, and there was no danger of injury to the government or of the misleading of any man's confidence. The United States had fixed a minimum price on these lands. There was strong competition; and a price so large was given for the lands, that the Port Lawrence Company were compelled to relinquish the site of the town to the government. So the effect, at any rate, was not a cheat to the country.

It would be a flagrant encouragement of fraud to say, that because Oliver and Piatt had formed such a partnership for their respective companies as that in 1817, Oliver and Williams (who bought of Oliver and thus came into the Port Lawrence Company) might in 1836 cheat all the others of the company out of their shares in the Port Lawrence lands.

It is contended that Baum did remain a trustee and agent for the Port Lawrence Com pany in respect to Nos. 1 and 2, after the surrender to the United States, as well as in respect to the other property of that company, and of the lands owned separately by the Baum Company and by the Piatt Company. That he was agent and trustee as to all the other lands, except 1 and 2, is perfectly apparent; and that Oliver acted for him, that he acted only through Oliver for all the time, is just as apparent upon this record. Baum never was on these landsnever was in that region of the county-all was intrusted to Oliver. Some temporary business was done by another Mr. Oliver, but under the instruction and assistance of this appellant. The duty of surrendering the lots was done by Williams, but this was a single act.

Oliver could not stand on any better ground than Baum, whether he knew what Baum's powers were or not; or whether he acted as the sub-agent of Baum, or merely as his friend and for his accommodation, or not. If he acted as a volunteer, he could claim nothing of Baum or the company; but his claim must be upon the ground that his acts were at the instance of one or the other. He cannot, then, separate himself from the character of agent. He was acting for the company, not for Baum alone. He stood, then, as the company's fiduciary, and was bound to know how Baum stood to the company. Baum continued to be the agent and trustee for the other lands. This is undeniable. It is only said his agency may have terminated sometime afterwards. He was just as much agent and trustee for the lots 1 and 2 after the relinquishment as before. The intention to reclaim them was manifested by his 375*] petitions to *Congress. These petitions are dated 30th January, 1822; the lands were relinquished 27th September, 1821. In his letter to Mr. Brown he says, "though the petition is signed by myself only, still others have an interest in it, to wit: Jacob Burnet, William Steele, M. T. Williams, J. R. Miller, and John Rowan, of Kentucky; but for the sake of convenience, all the lands by the company were transferred to me;" and after having referred to the argument in the petition he says, it will show the just claim which, I think, I and my associates have on the government for redress." What was that redress? Why, that Congress should allow them to purchase the ints 1 and 2. so that they might build up the town laid off there, and in which they had sold lots.

66

is not attachable by foreign attachment." "For the same reason, foreign attachment lies not of a claim in covenant, because it sounds merely in damages." (Serg. on Attachment, 76.) "A legacy cannot be attached in the hands of the executor by foreign attachment, because it is uncertain whether, after debts paid, the executor may have assets to discharge it." (Serg, on Attachment, 86.) The statute of 1794 of Massachusetts provides, that any creditor entitled to an action against his debtor "having any goods, effects, or credits so intrusted or deposited in the hands of others," &c., may cause not only the goods and estate of the debtor "to be attached in his own hands or possession, &c., *but also all his goods, effects, and [*376 credits so intrusted and deposited." In the case of Picquet v. Swan et al. (4 Mason's Rep., 446) Mr. Justice Story says: "It is an extraordinary process, and from its nature can afford but a very imperfect administration of rights and remedies as to the litigant parties. Nor, as far as my limited experience has gone, has it enabled me to say, that in complicated transactions, where various and conflicting rights have been brought forward for controversy, the result has in a general view been such as entitled it to peculiar public favor on account of its advancement of public justice," &c. In 7 Mass. Rep., 274, the Supreme Court, in exposition of this statute, remarks, that "pecuniary legacies in the hands of an executor are not goods or effects; and it is equally clear, that in no proper sense can they be denominated credits.' (See, also, 1 Pick. Rep., 399.) These opinions go to show how this statute of Michigan should be construed.

In his letter to Mr. Brown, of the 6th of February, 1823, he speaks of the case on which he is petitioning, as "a ruinous one to me and my associates, and has resulted so from the acts of Congress more than other causes;" and he says, "all the tracts stood in my name, in order to render it more convenient to sell and conVey."

The possession of these lots, Nos. 1 and 2, on which the town was laid out, was not by any means given up when the surrender was made of the title to the United States, but it was held by Baum until the patent issued to Oliver, as far as it appears in this record.

[Mr. Pirtle referred to a great many parts of the record to establish this.]

The attachment in Michigan could give Oliver no title for several reasons. 1. No attachment would lie, because a mere equity, uncertain in its character, subject, according to the statements of Oliver, to balances due to Baum, could not be attached, and so the court had not jurisdiction. The old statutes of Pennsylvania are very general on the subject of foreign attachment; yet it has been held, that an attachment would not lie against executors 12 Dallas, 73); nor against money collected by. a sheriff (1 Dallas, 355). "A claim resting in damages and depending on a possibility only, HOWARD 3. U. S., Book 11.

Piatt Company alone. There was no debt of the Piatt Company.

3. This attachment was evidently sued out for the purpose of getting hold of the lands; and not merely for the purpose of making the money pretended to be due. These lands were of much greater value at the time of the attachment than is pretended. The three sections attached were valued at the time, by the commissioners appointed for the purpose, to $1,200. The sum pretended to be due was $213.07. Piatt and Oliver lived near each other; Piatt was a man of wealth, at any rate of very competent means, and was weekly in the city where Oliver lived. It was much more convenient to Oliver, if he knew this demand to be just, to have made his money by coercion, or otherwise, in his own neighborhood, than to proceed in a wilderness and remote regionhundreds of miles off.

It is a principle of universal justice, that a party shall not be affected by the judgment of a court who has not been party to the suit in which it was made. Who was the party that was to be warned to pay the money due on the mortgage by the decree nisi? Not Baum, for Oliver would not have received it of him; but the parties owing the debt, the Port Lawrence Company. Who was expected to defend the suit? Not Baum. Whose property was to be sold? The property of the Port Lawrence Com

pany; and to be sold to their agent upon their agent's suit! It would be strange, indeed, if they were not necessary parties in such judicial performances as this. The doctrine of necessary parties is stated in so many books, would fatigue the court to cite them. (See Story on Eq. Pl., 187; 4 Peters, 202.)

Had a third person, ignorant of the rights of 377*] the company, purchased *the property under this decree, he might have held, just as he might have held under a purchase from Baum without notice. But Oliver's purchase was nothing. The assignment from Baum aft erwards was nothing.

This purchase was on the 1st of September, 1828, and a few weeks before on the 12th of August a negotiation was commenced with the Michigan University by Oliver, for the exchange of lots 1 and 2 for other lands in the neighborhood.

Oliver says he made the proposition for himself; but the records of the University show that he made it in behalf of " Baum and others." Baum had been struggling with the government for these lots, 1 and 2, for several years, and the act of Congress passed for the benefit of Baum and others and not for the benefit of Oliver. The government had been made to understand that Baum and his associates had suffered great loss in the purchase of the lots 1 and 2, which they had been compelled to relinquish after having laid out a town, and sold lots, &c. The deed from the University to Oliver purports to be made to carry into effect the act of Congress; and the patent that issued to Oliver purports to be issued to carry into effect the intent of the aforesaid Act of the 13th January, 1830." The application of Oliver to the university for the exchange in behalf of Martin Baum and others, was calculated to delude the members of the Port Lawrence Company; and the act of Congress, purporting to be for their benefit, and to carry out, in substance, what Baum had been asking of the government for eight years, was directly calculated to quiet their anxiety, and mislead them.

[Mr. Pirtle here referred to many parts of the evidence to show that Oliver had created an impression that he was acting for Baum and others.]

Suppose there was no combination between these parties, or any of them, and that the other members of the company were not necessary parties to the suit, yet Oliver, according to his statement, was a mere volunteer; he had made the payments to purchasers, by which his demand was created, because they were his friends and old associates, and he had obtained the mortgage from Baum, with the knowledge that Baum held the title for a special object only; and how can he be allowed to hold the property under such circumstances? The assignments by Baum to him are all of apiece with the sale under the decree. What court ever supported a transfer by an agent and trustee, of all the subject of the agency and trusteeship, to his friend, or sub-agent, under pretense of paying debts? The assignments were made by Baum to enable Oliver to seize the Port Lawrence property. The foreclosure of the mortgage had been made for that purpose. Thus the matter was fixed up between them to take all, in and out of Port Lawrence, and let the cestuis que trust lose all

the money paid out for all the land, all *paid to Oliver, to Baum, and to every- [*378 body else; and a balance, the whole of Baum's account rendered, and two thirds of Oliver's, still outstanding!

The lots 1 and 2 having been obtained with the lands of the Port Lawrence Company, by such means, and by persons standing in the relation in which Baum and Oliver stood, and in which Williams also stood, must be held in trust for the Port Lawrence Company. Williams was one of that company, and was bound to have notice of the manner in which Baum held, and the relation in which Oliver stood; and his denials amount to nothing. I need not trouble this court with reference to authority to support the general doctrine, that a fiduciary cannot hold for himself the subject purchased with the funds intrusted. There are some qualifications of the rule. But why should there be any here? This is not a case where so much money has been laid out in lands by one who held money in trust, either to lay it out in lands, or for any other purpose; that money has no ear-mark, does not make a difficulty here. It is not a case, either, where justice cannot be rendered to the parties purchasing the land, if anything further than a specific lien were given to the land purchased. But this is a case where the lands exchanged have been improperly obtained, and applied to the exclusive use of parties standing in a relation to compel them, in good faith, to divide the lands acquired, taking to themselves a sufficient compensation. It is not necessary that there shall be a direct violation of a formal trust, to allow the parties, claiming to have the benefit of the purchase, that privilege. (Docker v. Somes, 2 Mylne & Keene, 655; 4 Kent's Com., 306; Holt v. Holt, 1 Ch. Ca., 19; Walley v. Walley, 1 Vern., 484; Palmer v. Young, 1 Vern., 276: Lane v. Dighton, Ambler, 409; 1 Bro. Ch. Rep., 232; 2 Bro. Ch. Rep., 287; Phillips v. Crammond, 2 Wash. C. C. Rep., 441; Holeridge v. Gillespie, 2 Johns. Ch. Rep., 33.) This case is very similar in its principles to the cases of a renewed lease, procured by an executor or guardian, when he shall be a trus tee of the new lease; and of a surrender by one partner and a new lease taken to himself, where his partners shall hold him as a trustee, as in some of the cases just cited. The doctrine contended for has been uniform, from the decision of Lord Keeper Bridgman, in Holt v. Holt, says Chancellor Kent, to the present time.

Mr. Scott, on the same side, for appellees:

This cause is brought before this court by appeal from a decree of the Circuit Court of the United States, seventh circuit, and District of Ohio; and in its discussion we shall assume the following positions:

1. At the time lots 3 and 4 (except ten acres, part of lot 3, reserved), and the three quarter-sections in the bill named, were transferred by William Oliver to the trustees of the Michigan University, *in exchange for [*379 lots 1 and 2, said Oliver was the trustee, and Robert Piatt, the original complainant, and others, the cestuis que trust of the lands then given in exchange for lots 1 and 2 of the ten acres reserved, part of lot 3; of lot 86 (except sixty acres, parts thereof sold to Prentiss

and Tromley); of lot 87, and the southeast quarter of section 3, of township 3-all in the twelve miles reservation, at the foot of the rapids of the Miami of Lake Erie.

2. When Oliver received conveyances from the trustees of the Michigan University (and assignments of the original first certificates from Baum, and obtained a patent therefor) of lots 1 and 2, in exchange for the three quartersections of land which belonged to the Piatt Company, and for part of lot 3 and lot 4, which belonged to the Port Lawrence Company, he became invested with the legal title to said lots 1 and 2, as trustee, in trust for said Piatt and Port Lawrence companies, from whom the consideration given for said lots 1 and 2 proceeded.

3. M. T. Williams is not an innocent bona fide purchaser. He is effected with notice at and prior to the respective periods in which he received conveyances from Oliver, of portions of the lands in question, and therefore holds the same as trustee, for the uses and purposes originally designed. (1 Phillips's Evidence, 410, 411; Comyn's Digest, tit. Evidence, B. 5; Plowden, 234, 430, 434; 2 Serg. & Rawle, 507; Gilbert's Evidence, 87; 1 Salk., 285; Marchioness of Anandale v. Harris, 2 Peere Williams, 432; Shelby v. Wright, Willis, 11; Com. Dig., tit. Estoppel, A. 2.)

4. Oliver as agent, and Oliver and Williams as trustees, are bound to account with and pay to the original complainant, Robert Piatt, his just proportion of the money and notes received by them on the sales of lots in Port Lawrence and Toledo, and lands adjacent, and to convey to him his just proportion of such parts thereof as remain unsold.

5. Oliver and Williams have no just cause to complain of the decree which has been rendered against them in the Circuit Court, as ample and more than liberal justice has been awarded to them, even if their conduct in the premises had been entirely untainted by fraud or a fraudulent design, and they had been merely acting under an entirely innocent but mistaken view of their legal rights. But it is respectfully submitted, that Robert Piatt, the heirs of Martin Baum, and the other defendants in interest, have just cause to complain of that decree.

The answers of all the defendants, except Oliver and Williams, to the amended bill of the original complainant, Robert Piatt, are in the nature of cross-bills, and respectively ask for similar relief, as respected him or themselves, to that prayed for by the complainant, Robert Piatt.

It was therefore proper for the court, in ren380*] dering the decree, to *adjust and settle the interests and claims of all the parties to the record.

L [Mr. Scott related the formation of the Port Lawrence Company.]

The partnership thus formed was neither universal nor general, but limited and confined to the objects set forth in the instructions, &c., given to Oliver, and the facts to which we shall refer, from which the rights, duties, and obligations of Baum, the trustee, and Oliver, the agent, are to be ascertained.

It is conceded that Baum continued to act as trustee until his death. That Baum's powers

were restricted to a general oversight of the company's business, and the execution of conveyances of the lots and lands when sold, we also infer from the following facts:

Baum, in his letter to Brown, 25th December, 1822, says: "For the sake of convenience, all the lands, by the company, were transferred to me." In his letter to the same, February 6th, 1823, he also says: All the tracts stood in my name, in order to render it more convenient to sell and convey;" and in his letter to the commissioner of the general land office, July 20th, 1827, he says: These lands, though bought in sundry persons' names, were afterwards transferred to me as agent, for the purpose of managing and conveying them in case of sales." All the certificates, for the purposes aforesaid, were assigned to Baum.

Oliver, as agent, with the assistance of Schenck, proceeded to lay out the town, advertised a sale of lots, and sold a number of lots. His instructions confined him to the sale of a certain portion of the lots, fixed the terms of sale, and required him to give certificates of purchase, in the nature of title bonds, for a conveyance by Baum, the trustee. He was to open an immediate correspondence with Baum relative to the interests of the company, and was informed that any instructions he might thereafter receive from Baum, the trustee, were to be considered as coming directly from the proprietors themselves. This is all shown by his instructions, his bond to Baum, and power of attorney from Baum.

The letter given by Baum to Oliver, notifying him of his appointment, which relates particularly to the salary he was to receive, would seem to restrict his agency to one year; but his appointment by the company was without limit as to time. His appointment being without limit as to time, the law presumes a continuance of his agency. (See Starkie's Evid., 46. 50, 51, cited.) Oliver insists that he never acted as agent of the Port Lawrence Company after his resignation, in May or June, 1818. But the following facts and circumstances show that his agency extended beyond that period, and that he still stands in that relation to the company.

[Mr. Scott here referred to numerous parts of the record.]

We thus deem the agency of Oliver, from August, 1817, the date of his original appointment, down to the 20th June, 1834, established; *the consequences resulting from which [*381 agency will be examined hereafter.

Oliver was one of the original proprietors of Port Lawrence; and, although he may have transferred his interest in the company to oth ers, in 1818 and 1819, as he alleges in his answer, yet all the liabilities against said company had accrued prior to said transfers. These transfers did not discharge him from the liability to persons who had claims growing out of purchases made prior to his transfers, which liabilities have not yet been entirely satisfied. (See Collyer on Partnerships, 4, 105; and Story on Partnerships, sec. 358.) No settlement among the original proprietors or their legal representatives or assignees has ever been made; his relation, therefore, to the company, as one of the original partners, still remains, and the consequences of this relation will

cause.

The pressure of the times and other causes rendered it indispensably necessary for the company to avail themselves of the benefit of the Act of Congress for the relief of purchas ers of the public lands prior to the 1st day of July, 1820, by the relinquishment of lots 1 and 2, and the application of the money paid thereon to the payment of the purchase money of other lands bought by them. The amount paid on tracts 1 and 2 was $4,817.554. The balance due on lots 3, 4, 86, and 87, was $1,402.364; and the balance due by the Piatt Company, for their five quarter-sections, was $1,248. In order to facilitate, therefore, the application of the moneys paid on said lots 1 and 2, the original first certificates of the purchase of said lots 1, 2, 3, 4, 86, and 87, and the five quarter sections, were all assigned to Baum.

M. T. Williams, as agent, made the relin quishment of said tracts 1 and 2, and applied the moneys arising therefrom to the discharge of the balances due on the lands retained, September 27, 1821, and the surplus remaining after such payment was $949.21, one half of which, viz., $474.604, belonged to the Piatt Company. This balance, by arrangement between the parties, was applied to the payment of lands which had been purchased by the Maumee & Sandusky Company, and which was to be accounted for as part of the Piatt Company's portion of the liabilities of the Port Lawrence Company.

All the defendants, except Oliver and Williams, distinctly admit that the five quartersections were assigned to Baum for the purposes above named, and that no consideration moved, or was intended to move, from Baum to the Piatt Company, as an inducement to said assignments. Neither Oliver nor Williams deny that the assignments were made for the above purposes. The assignments being thus made for the above purposes, those purposes being accomplished, a trust resulted to the Piatt Company in said five quarter-sections. (See Jackson v. Mills, 13 Johns. R., 463; Boyd 382*] v. Lane, 1 Johns. *Chan. R., 582; Wallace v. Duffield, 2 Serg. & Rawle, R., 521; Foote v. Calden, 3 Johns. R., 216; Trustees of the Methodist Episcopal Church v. Jacques, 1 Johns. Ch. R., 450; Botsford v. Burr, 2 Johns. Ch. R., 405; Huston v. Hamilton, 2 Binn. R., 387; Deg v. Deg, 2 P. Williams, 412.)

Mr. Scott then referred to various parts of the record to show that when lots 1 and 2 were relinquished, it was done with an understand ing and determination, among the original proprietors, to repurchase them, and go forward with the enterprise of building up a town; and then argued, from the following propositions, that Oliver intended to defraud his associates: 1. In order to place himself in a situation in which he might secure to himself a part or the whole of the five quarter-sections belonging to the Piatt Company, Oliver procured from M. Baum the certificate dated September, 10, 1822. The giving of that certificate did not fall within the scope of Baum's authority as trustee. (See Story on Partnerships, sec. 111.)

The accounts between the partners could not be split up, as contemplated by that certificate,

At the time that certificate was given, nothing was due from the Piatt Company to the Port Lawrence Company, but, on the contrary, the sum of $191 was due from the latter to the former. No suit at law could be maintained by Oliver, the agent, for the recovery of the amount of said certificate, it being fraudulent and void; and if a just demand, it was due from the Port Lawrence Company, and not the Piatt Company, and a suit could not be maintained on it against the Piatt Company. (See Story on Partnerships, secs. 234, 235, 236, and 128; Jackson v. Rawlins, 2 Vernon, 95; Maddor v. Jackson, 3 Atkins, 406; Anon., 2 Freeman, 27.) 2. Oliver's letter to R. Piatt, February 3, 1823.

3. No demand for payment of said certificate was ever made upon the Piatt Company, or any of its members; nor was there ever any legal proceedings instituted against them where they resided.

4. The very fact of instituting legal proceedings in a foreign jurisdiction, against the prop erty of the Piatt Company, at a point situated more than two hundred and fifty miles from the residence of any of the members of the Piatt Company, and which point could only be reached by passing through a dense and uninhabited wilderness, whilst most of those members resided in the immediate neighborhood of Oliver, furnishes strong evidence of a fraudulent and ulterior design on the part of Mr. Oliver to secure to himself the property of the Piatt Company.

5. At October Term of the County Court of Monroe County, Michigan Territory, 1825, Oliver sued out a writ of foreign attachment on the aforesaid certificate, against Martin Baum, Robert Piatt. *George A. Worth, and Will- [*383 iam M. Worthington, survivors of Martin Baum, John H. Piatt (deceased), Robert Piatt, George A. Worth, and William M. Worthington, late joint partners. The manner in which this attachment was sued out would seem to furnish conclusive evidence of a fraudulent intent. George A. Worth never was a partner, nor had any interest in the Piatt Company; nor were Martin Baum, John H. Piatt (deceased), Robert Piatt, George A. Worth, William M. Worthington, late joint partners. The three quartersections on which the attachment was levied did not belong to the persons named in the attachment, but to the representatives of John H. Piatt (deceased), Robert Piatt, Gorham A. Worth, and William M. Worthington. This is not like the case where process has been served on an individual by a wrong name, in which case he has an opportunity of appearing in court and pleading the misnomer in abatement. In altachment, the proceedings being in rem, if the property on which the attachment be levied be long not to the defendants named in the writ, it is respectfully submitted that the court has no jurisdiction in the case. Even if the notice which seems to have been given of the penden cy of the attachment had by accident reached the members of the Piatt Company, they could not have supposed that they were the persons intended. The plaintiff, in all such cases, proceeds at his peril. (Kilbourn v. Woodworth, 5