
    W. P. Wilson et al. v. Nicholas Eifler and Joseph Davenport.
    Plea Ik Abatement. — Waiver of objection to '.
    
    1. Where a plea in abatement to an attachment is not properly sworn to, but no exceptions are taken to it in the court below, objections to its regularity will not be heard in the Supreme Court, y Such objections will be treated as having been waived. .
    * Attachment. — Fraudulently disposing of property.
    
    
      2. Where a creditor made an assignment of his property, and at the same time made a declaration to one of his creditors that he intended to treat him as a preferred creditor, and would not pay those creditors who pushed him if he could avoid it, this was held sufficient evidence of fraud to warrant the issuing of an attachment.
    Assignment. —Right to prefer creditors.
    
    3. A debtor has a right to prefer a portion of his creditors to others; '• and a deed of assignment making preference among creditors would be good in the absence of fraud even though the necessary effect of it were to delay or defeat a particular creditor or class of creditors.
    
      The Same. — Fraud.
    4. But if a debtor convey his property to a trustee, not merely for the purpose of preferring one creditor to another, hut for the express pur. pose, and with the deliberate intent to defraud a particular creditor or class of creditors, and wholly and absolutely to defeat the recovery of their debts, this intent being a controlling motive in the debtor’s mind; then this intent is such an intent to defraud as will justify the issuance of an attachment against his property, though the conveyance actually made might be valid in the hands of the trustee, and the property, therefore, not liable to seizure by attachment.
    Assignee Liable Eor Costs, When.
    6. An assignee who voluntarily causes himself to be made a party to a suit against his assignor by an attaching creditor, and who takes no steps in the proceeding to protect his rights as assignee, will be compelled to pay his own costs.
   Andejsws, J.,

delivered the opinion of the court:

The bill of complainant in this cause alleges that the defendant Eifler is indebted to the complainants and is about fraudulently to dispose of his property, and prays for the issuance of an attachment against his property. The attachment was issued and levied upon the property of the defendant.

After the levy of the attachment, Joseph Davenport filed a petition in the cause, showing that the goods attached had been assigned to him before the issuance of the attachment, by deed of trust made by said Eifler, and prayed to be allowed to enter his appearance as a party defendant in the cause and for leave to file an answer.

The petition was granted by an order upon the record, which, though defective in form, sufficiently shows that leave was granted to Davenport to become a party and to make defense.

A plea in abatement was then filed for Eifler and Davenport jointly which denies the ground of attachment alleged in tbe bill to-wit: That Eifler was about fraudulently to dispose of bis property. This plea was sworn to by Davenport, but not by Eifler.

Whether this verification of the plea was sufficient, we do not stop .to consider ; as the complainants treated it as a valid plea, proceeded to take testimony for the purpose of proving the plea to be false, and do not appear by the record to have taken any exception to its regularity until the hearing in this court,

This was a waiver of the objection. The plea is sufficient in its averments, and the complainants had the right to waive the verification of it if they chose to do so. A party who has the right to have a pleading disregarded or stricken out for defective form or verification, must make his election in due time ; and cannot after treating it as valid, taking testimony upon the issue made by it, and going to a hearing upon it, then object for the first time to the validity of the pleading, and allege that all his own proceedings upon it were erroneous.

This plea must be held, for the purposes of this cause, to be sufficiently verified.

The ^complainants proved by the witness Koehler, that Eifler, after the assignment was made, told him that he had made him, Koehlor, a preferred creditor; “ that some of his creditors, who had pushed him for pay, he would not pay, if he could prevent it; that is, instead of paying such debts,‘he would make me a preferred creditor ; * * * * * * that if he could prevent it, he would not pay those who pushed him.” As against Eifler, these declarations must be held sufficient evidence of such intent to defraud as would authorize an attachment against his property.

Eifler had the right to prefer a portion of his creditors; and the necessary effect of an assignment making such preferences might be to delay or defeat those not so preferred; and if the deed was accepted by the trustee in good faith, and without any knowledge of a participation in any fraudulent intent, the deed would not be void as against the trustee and those who accepted the benefits of the trust. And a deliberate intention on the part of the assignor that certain creditors should not be paid out of the property assigned, until a preferred class should be paid, is not without a more fraudulent intent.

. But if a debtor conveys his property to a trustee, not for' the purpose of merely preferring one creditor to another, but for the express purpose and with the deliberate intent to defraud a particular creditor or class of creditors, and wholly and absolutely to defeat the rifcovery of their debts,this intent being a controlling motive in the debtor’s mind then that intent is such an intent to defraud as will justify; the issuance of-an attachment against his property, though, the conveyance actually made might be valid in the hands of the trustee, and the property“conveyed,therefore not liable to seizure under the attachment.

But Eifler’s admission made after the execution and deliv. ery of the assignment, do not bind Davenport, and there -is no proof in this record, on which if the matter were in issue, we could adjudge this assignment void as to the latter.

Davenport has not put his title to the property, in issue, and the evidence introduced as to the validity of the deed, is wholly irreválent as to him.

The plea in this cause was to the jurisdiction of the court; and put in issue nothing except the right of the complainants to have a writ of attachment against the property of Eifler. Davenport could not have himself made a party to the suit for the mere purpose of denying that the court had any jurisdiction of the suit against Eifler. If he wished an • adjudication as to the validity of his title to the property, he should have put that matter in issue by proper pleadings, so as to enablo the court to pass upon it.

But Davenport has no interest in the question whether the complainants are entitled to an attachment as against Eifler, unless it appear that such attachment has interfered or will interfere with his own rights of property. Davenport’s deed may be valid, and the complainants still have a right to issue an attachment against the property of Eifler, and t’o make it available if they can do so without interfering with the rights of Davenport,

And even if the validity of Davenport’s title were an issue in the cause, the evidence wholly fails to show that he has any interest in the property attached and sought to be reached in this suit. The deed of assignment is not in the record, and there is no proof of its contents, that it was a general assignment, or that it had any reference to the property seized under the attachment.

As the evidence showed that Eifler intended fraudulently to dispose of his property, that the attachment was properly granted, and that the court had jurisdiction of the cause, the chancellor should have found the plea false as to Eifler, and rendered a decree against him.

But as Davenport’s title is not in issue, and he does not allege or prove any interest in the subject matter of this suit, we can make no decree as to tbe validity of his claims.

The suit as against Davenport must be dismissed without prejudice.

But as he has voluntarily caused himself to be made a party to this proceeding, and has shown no interest in the •matter in litigation, he must pay his own costs.

The decree of the Chancellor, will be reversed as to Eifler and the cause remanded to the Chancery Court, with directions to ascertain the amount due to complainants, and to render a decree in their favor for the amount so ascertained and to make the necessary orders and decrees for the satisfaction of that decree.

Decree reversed. 
      
      
         Act of 1794, ch. 1, § 26; (Tho. and Steg. Statutes, § 2901.) Young v. Stinger, 6 Hayw. 30; Bank of Tennessee v. Jones, 1 Swan, 391; James v. Hall, 1 Swan, 297; Grove v. Campbell, 9 Yerg. 9.
     