
    The American Oak Leather Co. vs. The Evans Bell and Clark Co.
    May Term, 1897.
    Present: Ross, C. J., Rowell, Tyler, Munson, Start and Thompson, JJ.
    
      Plea to the Jurisdiction.
    
    When there is no personal service upon the defendant and jurisdiction depends upon the attachment, a plea to the jurisdiction which alleges that the defendant had at the time of the attachment “no right, title or interest in or to any of the attached property,” is insufficient on demurrer because it fails to negative the possibility that the property may have been in the defendant’s possession under circumstances which would make it attachable as the defendant’s, though not his in fact.
    Assumpsit. Plea to the jurisdiction. Demurrer to the plea. Heard at the December Term, 1896, Caledonia County, Taft, J., presiding.
    Demurrer overruled pro forma and plea adjudged sufficient. The defendant excepted.
    The defendant is a foreign corporation. The officer’s return showed service by attachment of seventy-six cases of boots and shoes as the property of the defendant and a copy of the writ with a list of the property attached left in the hands of one H. A. Bartlett at the place where the property was attached, “he having the care and custody of the property and the defendant being without this State and having no clerk or other principal officer or stockholder resident of this State and no known agent or attorney resident of this State with whom” said copy could be left. The cause was duly entered and continued for notice by publication, and the order of notice was complied with.
    There was a special appearance for the purpose of the plea only and a plea filed referring to the writ, declaration and officer’s return and alleging that no other service and no other attachment had been made. Then followed the averment “that the defendant had not at the time when said attachment was made and has not since had any right, title or interest in or to any of the property attached in said cause.”
    
      Harry Blodgett for the plaintiff.
    
      W. P. Stafford for the defendant.
   Munson, J.

The dilatory plea in this case is treated by counsel on both sides as a plea to the jurisdiction. It is not necessary to inquire as to its precise character, for it is defective in one particular, whatever its character. It fails to exclude the possibility that the chattels were in the possession of the defendant under circumstances that made them attachable as its property. They were so attachable if they had previously been the property of the defendant and had been sold to another without change of possession. The defendant might have parted with all its right, title and interest in and to the property, by a sale valid as between the parties, and still be held the owner for the purposes of attachment. The plea does not present an issue which if disposed of upon traverse would be determinative of the question raised. All the facts alleged might be true, and yet the attachment of the property give the court cognizance of the suit.

Judgment reversed, demitrrer sustained, plea adjudged insufficient, and cause remanded.  