Syllabus.

one whose qualifications are admitted. While the power of the general assembly to determine who may be exempt from such service is not doubted, the exemption must be by laws of equal operation as to the conditions of exemption. The very terms of the statute in question show that no such equality of conditions is prescribed.

It is not at all material in the present inquiry that the statute under which the defendant claims immunity has been acquiesced in for many years. As said by Judge Cooley, Const. Limitations, 85, 86: "Acquiescence for no length of time can legalize a clear usurpation of powers where the people have plainly expressed their will and the constitution has appointed judicial tribunals to enforce it."

The judgment will be reversed and the petitioner remanded to the custody of the sheriff.

Reversed.

JOHNSON, DONAHUE, WANAMAKER, NEWMAN and WILKIN, JJ., concur.

CROW V. SIMS.

In action for malicious prosecution of attachment case-Malice and want of probable cause-Must be alleged and proven-Action for damages maintainable on statutory bond, when-Section 10254, General Code, requiring bond-Does not affect common law right of action, when.

1. A suit for damages for causing an attachment to issue as auxiliary to a civil action for debt is no exception to the general rule that in all actions at common law for malicious prosecution or for the abuse of the processes of the court, malice and want of probable cause must be alleged and proven.

Opinion of the Court.

2. In such case, in the absence of malice and want of probable cause, no action can be maintained except upon the statutory bond, if any, given in the attachment proceeding.

3. The provision of Section 10254, General Code, requiring the plaintiff to furnish a bond before a writ of attachment shall issue, conditioned that the plaintiff will pay defendant the damages he may sustain if the order therefor is wrongfully obtained, has no application to and does not affect the common law right of action, but merely furnishes an additional statutory protection to the defendant.

(No. 13169-Decided June 10, 1913.)

ERROR to the Circuit Court of Cuyahoga county.

Messrs. Howland, Moffett & Niman, for plaintiff in error.

Messrs. Hidy, Klein & Harris, for defendant in error.

BY THE COURT. The petition in this case avers that the plaintiff in error wrongfully caused an attachment against plaintiff's wages to be issued out of a justice's court on a claim for house rent. It does not aver that any bond in attachment was given or that it was a case in which a bond was required to be given before a writ of attachment could issue. There is no averment that the writ of attachment was actually levied on any property belonging to the plaintiff or that any garnishee process was issued or served in said case; nor is there any averment of malice and want of probable

cause.

This petition does not state a cause of action either at common law or on the statutory bond.

The common pleas court erred in overruling the objection of plaintiff in error to the introduction

Syllabus.

of any evidence, and the circuit court erred in affrming the judgment of the common pleas court.

Judgment reversed and judgment for plaintiff in error.

SHAUCK, C. J., JOHNSON, DONAHUE, WANAMAKER, NEWMAN and WILKIN, JJ., concur.

THE ASSETS REALIZATION COMPANY V. AMERICAN BONDING COMPANY OF BALTIMORE Eet al.

Co-suretyship does not exist-Where sureties are bound to same principal on separate instruments-Each bond limiting liability proportionately to total loss by obligee-Collateral given to indemnify one surety-Does not inure to benefit of all, when— Distribution of assets among respective sureties-Law of suretyship and assignment.

1. Where several surety companies are bound by separate instruments on account of the same principal, and each company, by its bond, limits its liability, in the event of default on the part of the principal, to such proportion of the total loss sustained by the obligee as the penalty named in its bond bears to the total amount of the bonds furnished by the principal to the obligee, the suretyship of each company is a separate and distinct transaction and the relation of co-suretyship among them does not arise, nor does the right of contribution exist. 2. Where, in such case, collateral or securities are placed by the principal in the hands of one of the companies to indemnify it against any loss it might incur by reason of its obligation on its bond, none of the other companies, in the event of the default of the principal, is entitled to any part of such collateral or securities to indemnify it against a loss incurred on account of its bond.

3. The principal, indebted at the time to the obligee on the obligation for which the bonds were required, made an assignment for the benefit of its creditors, and the claim of the obligee against the principal was allowed by the assignee; the several

Statement of the Case.

surety companies paid to the obligee the amount of this claim, each company paying the proportionate part of the indebtedness as provided in its bond, and each company taking an assignment from the obligee of its proper fractional share of the claim of the obligee against the principal and its assignee; subsequently a company, other than the surety companies, purchased all the assets, except cash, of the assignor in the hands of the assignee, and agreed to pay the latter an amount which, with the cash in its hands, would enable it, the assignee, to pay a dividend of fifty per cent. on the face amount of all claims of creditors allowed, which agreement, on the part of the purchaser, was approved by the court of insolvency; prior to the assignment of the principal, it had placed in the hands of two of the surety companies separate collateral or securities to indemnify them. Held: That the purchaser of the assets of the principal must pay an amount sufficient for a dividend of fifty per cent. on the face amount of the claim of the obligee against the principal, as allowed, without any reduction on account of the collateral held by the two secured companies, and that the purchaser of the assets, under its contract of purchase, is entitled to any excess or surplus of collateral remaining after the two secured companies are indemnified thereby.

(No. 13012-Decided June 17, 1913.)

ERROR to the Circuit Court of Cuyahoga county.

The American Bonding Company of Baltimore, The United States Fidelity & Guaranty Company and the Fidelity & Casualty Company brought suit in the common pleas court of Cuyahoga county against The Fidelity & Deposit Company of Maryland, the National Surety Company, the Aetna Indemnity Company, The Metropolitan Surety Company, the United Surety Company, the city of Cleveland, The Euclid Avenue Trust Company, The Cleveland Trust Company and The Assets Realization Company. Plaintiffs, in their petition, asked, among other things, judgment against The Cleveland Trust Company, the assignee of The Euclid Avenue Trust Company, for full dividends

Statement of the Case.

upon the proportions of the face value of a certain claim of the city of Cleveland against The Euclid Avenue Trust Company, which proportions were assigned to plaintiffs, and further asked that certain securities or notes and mortgages held by the National Surety Company and The Fidelity & Deposit Company of Maryland be ordered converted into money in such manner as the court might direct, and, after paying costs and expenses, the same be apportioned among the various bonding or surety companies, plaintiffs and defendants in said action.

All the defendants, except the city of Cleveland and The Euclid Avenue Trust Company, filed answers and cross-petitions and the cause was submitted to the common pleas court upon the petition of plaintiffs, the various answers and cross-petitions, the replies and the evidence, and the common pleas court rendered judgment practically in accord with the prayer of the plaintiffs and of the cross-petition of the bonding companies other than The Fidelity & Deposit Company of Maryland and the National Surety Company.

An appeal to the circuit court was taken from the judgment of the common pleas court by the two companies last named, and the circuit court. granted the entire relief sought by plantiffs and stated its conclusions of law and its conclusions of fact.

To understand clearly the relations of the parties, the questions involved and the matters in controversy, it is necessary to recite, at length, the facts found by the circuit court.