ord in the office of the clerk of the district court of Grand Forks county; that execution was issued out of and under the seal of the district court to satisfy said judgment out of the personal property, etc., of said Alice Gorman; that said execution was indorsed by said plaintiffs, and delivered to the sheriff of said county; that by virtue of said execution said sheriff levied upon certain moneys belonging to the said Alice Gorman then in possession of the defendant herein; defendant then and there acknowledged that it had moneys in its hands and under its control belonging to said Gorman, and through its duly-authorized officer delivered to the sheriff a voucher or warrant No. 842 for the sum of $60, by which sum the judgment against said Gorman was credited; that the defendant has failed and neglected to pay the said warrant or voucher, or any part thereof, though often requested to do so.

To this complaint defendant interposed a general demurrer, which was sustained by the court, and, plaintiff failing to amend, judgment was rendered in favor of defendant for costs.

The action of the court in sustaining the demurrer is substantially the only assignment of error relied upon in this case.

It appears from the complaint that the procedure had against the defendant was in the nature of garnishment, and, as under the law of this territory the defendant is a quasi public corporation, it is urged by defendant that it could not be made subject to proceedings in the nature of attachment or garnishment. This position is conceded by counsel for plaintiff, but it is insisted on behalf of plaintiff that it was not a garnishment, but that the sheriff levied the execution upon the warrant or voucher, which at the time was the property of Alice Gorman. If this insistment be true, and had been sufficiently alleged in the complaint, it might be material and of some avail; but conceding that it was a levy upon the voucher, and that the fact is sufficiently pleaded, it still seems to us that this would not entitle them to recover against the defendant, for the reason that it appears upon the face of the complaint that Alice Gorman, the judgment debtor, had never received or accepted the voucher,

nor had it ever been issued or delivered to her. It was simply written out by the clerk of the school board in her name, and was subject to be revoked before delivery by the action of said school board.

We are therefore clearly of the opinion that the voucher in question had never become her property, and hence a levy upon it could fix no liability on the defendant. Whatever property existed in said voucher was in and under the control of the school board.

This view is fully maintained on principle, and also by a wellconsidered case, the facts of which are almost identical with the case at bar, handed down by the supreme court of Wisconsin, reported in 5 N. W. Rep. 912, in the case of Merrill v. Campbell.

We have not discussed, nor is it necessary to pass upon, the question of the exemption of the defendant corporation from garnishment proceedings, for the reason that it is conceded by counsel for appellant that this proceeding was not of that character; but he contends that it was a levy upon choses in action, instead of a proceeding in the nature of garnishment. This doctrine has, however, been upheld by many of the courts of the states of the Union on the ground of public policy, among which we cite the following cases and authorities: 1 Dill. Mun. Corp. § 101, and notes; Drake, Attachm. c. 22, § 494; Freem. Ex'ns, 133; Clark v. School Com'rs, 36 Ala. 621; Ross v. Allen, 10 N. H. 96; Stephens v. Harper, 59 Ill. 21; Millison v. Fisk, 43 Ill. 112; Morgan v. Smith, 4 Minn. 104, (Gil. 64;) School-Dist. v. Gage, 39 Mich. 484; McLellan v. Young, 21 Amer. Rep. 276, 54 Ga. 399; Buckley v. Eckert, 3 Pa. St. 386; Casey v. Davis, 100 Mass. 124; Dunlap v. Peterson Fire Ins. Co., 74 N. Y. 145. The judgment is in all things affirmed.

All the justices concurring.

MADISON NATIONAL BANK OF MADISON, DAKOTA, Appellant, v..

FARMER, Respondent.

1. Chattel Mortgages Mortgagees-Right to Possession.

In an action by a mortgagee to obtain possession of the chattels, as against another mortgagee thereof, he must show default in his mortgage, or such a state of facts as, under it, will entitle him to the possession.

2. Same-Verdict-Value.

In an action of claim and delivery by a third person against a mortgagee, where the latter has a verdict, it is the proper practice for the jury to find the value of the mortgaged chattels, rather than the value of the mortgagee's interest.

(Argued May 15, 1888; affirmed May 25; opinion filed October 1, 1888.)

Appeal from the district court of Davison county; Hon. BART-LETT TRIPP, Judge.

F. L. Soper, for appellant.

Appellant, to secure a reversal, need only show a prima facie case before the district court. Thompson, Juries, 36; Woods. v. Atlantic Mutual Ins. Co., 50 Mo. 112.

Appellant's mortgages on the property were prior to the respondent's. His, as to the wagon, was given before the mortgagor owned it; it was therefore void. Jones, Chat. Mor. § 138; Gardner v. McEwin, 19 N. Y. 123.

If the defendant is entitled to recover, it would be only his. interest in the property, the amount due on his note and mortgage, which is much less than $300. Wells, Replevin, §§ 584, 585; Allen v. Judson, 71 N. Y. 77; Townsend v. Bargy, 57 N. Y. 665; Weaver v. Darby, 42 Barb. 411; Warner v. Hunt, 30 Wis. 200; Childs v. Childs, 13 Wis. 19.

Winsor & Mentzer and Goodykoontz, Kellam & Porter, for respondent.

We may concede that appellant's mortgages were senior to respondent's, still the mortgagor had a right to make another,

and under it respondent might take possession of the mortgaged property, as provided in his mortgage. And during all this time, and while respondent was so in possession, appellant might have been entitled to take possession under one or both of his mortgages; but the exercise of such right was optional on his part, and respondent could not be in fault for not voluntarily delivering up to him what he never intimated that he wanted. Until demanded by one having a better right, there was nothing to put respondent in the wrong. Cadwell v. Pray,

(Mich.) 2 N. W. Rep. 52.

The court was entirely uninformed as to what were the conditions of appellant's mortgages. Neither the complaint nor the evidence disclosed more than that they were chattel mortgages. They were not set out in the pleadings, nor were they put in evidence. The appellant, then, had no right to take possession until after default in payment, "unless authorized by the express terms of the mortgage." Section 1733, C. C.; Smith v. Coolbaugh, 19 Wis. 106.

In a case like this the jury is required to find the value of the property. Section 263, C. C. Pro.

It is settled that as between these parties this property was rightfully in possession of respondent, and he is liable to whomsoever shows himself entitled to it, to either return the property, or account for its value. This he cannot do if appellant is allowed to keep the property, and pay less than its value for it.

CARLAND, J. Appellant brought an action in the district court of the county of Davison against respondent, to recover the possession of one brown mare, one two-seated light spring wagon with cover, and alleged the value of all of said property to be $300. In pursuance of the requisition of appellant, the officer delivered the said property to said appellant. The complaint in the action contained the usual averments in such actions, and alleged that the appellant was entitled to the possession of the property described, by virtue of certain chattel mortgages given by J. H. Stuckey and A. J. Stuckey to the Madison

Bank of Madison, Dak.; which said mortgages were described in the complaint in said action by merely giving date of execution and property mortgaged, together with the names of the mortgagors and mortgagees. The complaint further alleged that the appellant was the owner of said mortgages, and the indebtedness secured thereby for a valuable consideration; but nowhere alleged what the conditions of said mortgages were, or that the indebtedness had not been paid, or that any of the conditions of said mortgage had been broken, or that any circumstances whatever had occurred which would entitle the appellant to the possession of the property described. The respondent answered, and denied that appellant was the owner of said property, and also denied any wrongful taking or withholding of the same; but admitted that J. H. Stuckey and A. J. Stuckey had given the mortgages described in the complaint, and that appellant was the owner and holder of the same. For a further defense respondent alleged that on July 2, 1886, one A. J. Stuckey, being the owner of the property described in the complaint, gave the respondent a chattel mortgage on said property, and that the same had been duly recorded; that on the 5th day of January, 1887, default having been made in the payment of the money secured by said mortgage, respondent took possession of the property therein described, and was proceeding to foreclose the same, when the property was taken from him by proceedings in said action. When the case was called for trial, the appellant gave testimony tending to show that the property taken from respondent was the same property described in the mortgages mentioned in the appellant's complaint, and then rested his case. Counsel for respondent moved the court to direct a verdict for respondent, which motion was granted. A verdict was then returned by the jury in the usual form, which assessed the value of the property at $300. An exception having been taken to the ruling of the court, appellant appealed to this court, and assigned said ruling as error, and also alleges. that the verdict is erroneous in not finding the value of defendant's interest in the property, instead of the full sum of $300,