2. The conveyance by a debtor some two years prior to the attachment of his property, and at a time when he was not indebted to any considerable extent as compared with his assets, which aggregated in value upwards of $500,000, of his homestead to his wife in exchange for other real estate owned by her, is not evidence of an intent to defraud his creditors.

by executing a bond to pay any judgment which may be recovered against him in the attachment suit, cannot apply for the dissolution of the attachment.

2. Chandler v. Nash, 5 Mich. 409, holding that an insolvent debtor, who has made an assignment of his property for the benefit of his creditors which is valid as to him, cannot apply for the dissolution of an attachment subsequently levied upon the property.

3. Hyde v. Nelson, 11 Mich. 353, holding that a defendant, by appearing and pleading to the action, does not estop himself from applying for the dissolution of the attachment.

4. Edwards v. Hughes, 20 Mich. 289, holding that where partnership property is attached upon an affidavit charging all of the partners with being about to dispose of their property with intent to defraud their creditors, and no grounds exist as against one of the defendants for the attachment, he, being entitled to the possession of all of the partnership property as against such unauthorized attachment, may apply for its dissolution without joining as co-applicants a co-defendant who was not served with the writ, and the remaining co-defendant, against whom cause existed for its issuance.

5. Patterson v. Goodrich, 31 Mich. 225, holding that a defendant who is the owner of and entitled to have restored to him a portion only of the attached property has a right to apply for the dissolution of the attachment.

6. Rowe v. Kellogg, 54 Mich. 206, holding that a husband, in joint possession with his wife of land belonging to her, but used as the family homestead, has, as head of the family, such an interest in the land as entitles him to complain of any unlawful interference with it; and if he is defendant in an attachment suit in which the land has been levied upon as his own, he is entitled to apply for the dissolution of the attachment.

7. Gott v. Hoschna, 57 Mich. 413, holding that the assignee of an insolvent debtor cannot apply for the dissolution of an attachment, that right being confined to a defendant who is entitled to a return of the property.

Application.

1. Osborne v. Robbins, 10 Mich. 277, holding that the application should show that the applicant's property has been attached, and set forth the property taken, and must be verified.

2. Nelson v. Hyde, 10 Mich. 521, holding that a statement in the application that the applicant's property, to the value of more than $3,000, has been attached by virtue of the writ, is not a sufficient description of the attached property to give the commissioner jurisdiction.

3. Macumber v. Beam, 22 Mich. 395, holding that the continued ownership by the applicant of the attached property is sufficiently shown in the application by a positive allegation that the property of the applicant, describing it, has been attached, followed by a

3. On a review of the testimony of the defendant, upon which the plaintiff relies to sustain the writ of attachment issued in this case, it is held that there is not a particle of evidence showing or tending to show any fraud or concealment on the part of the defendant in the disposition of his property, and that all of his actions have been in the interest of creditors, or of some of them; and the order dissolving the attachment is affirmed.

prayer "that the said attachment of his property above described may be dissolved, and that the said property be restored to this applicant."

4. Patterson v. Goodrich, 31 Mich. 225, holding that the cause assigned for suing out a writ of attachment will be held to have been sufficiently negatived, at least after the parties have proceeded to a hearing on the merits, by an application to the truth of which the applicant makes oath, and in which he prays for the dissolution of the attachment for the reason that the affidavit made therefor was false, and that the applicant was not, as averred in said affidavit, about to assign or dispose of his property with intent to defraud his creditors.

5. Johnson v. DeWitt, 36 Mich. 95, holding that the application should allege a right in the applicant to the possession of the attached property, and if, upon the hearing, such allegation is negatived by proof that the possession was held by officers of the law under and by virtue of valid executions issued against the goods and chattels of the defendant, the application should be denied. (Overruled by Association v. Printing Co., 58 Mich. 487.) 6. Smith v. Collins, 41 Mich. 173, holding that an application for the dissolution of an attachment on lands need not aver the right of the applicant to the restoration of the attached property. 7. Zook v. Blough, 42 Mich. 487, holding that where an allegation of ownership in the defendant of the attached property is distinctly made in the application, and there is nothing in the case indicating that any other person has acquired any right in opposition thereto, the legal presumption that the owner of property is entitled to its possession may very fairly be indulged in for the purpose of giving the commissioner jurisdiction.

8. Bank v. Steele, 81 Mich. 93, holding that an application in which the applicant denies that he has assigned, disposed of, or concealed his property with intent to defraud his creditors is not objectionable on the ground that such denial is in the alternative. Citation.

1. Pearson v. Creslin, 16 Mich. 281, holding that, where the citation is insufficient, the applicant will be considered as having abandoned the dissolution proceedings, and the same will be quashed as irregular and without jurisdiction.

2. Campfield v. Cook, 92 Mich. 626, holding that the service on November 29, of a citation returnable December 3, is insufficient, if one of the three intervening days is Sunday.

Burden of Proof.

1. Macumber v. Beam, 22 Mich. 395, holding that, on the hearing of the application, the plaintiff has the affirmative, and the burden of proof is upon him to show to the satisfaction of the commissioner the existence of such facts as justified the issuance of the writ.

Certiorari to Ingham. (Person, J.) Argued February 2, 1894. Decided April 10, 1894.

Certiorari to review proceedings resulting in the dissolution of a writ of attachment. Affirmed. The facts are stated in the opinion.

Alfred Lucking, for petitioner.

Cahill & Ostrander (M. V. & R. A. Montgomery, of counsel), for respondent.

2. Brown v. Blanchard, 39 Mich. 790, holding that the plaintiff in attachment has the burden of satisfying the commissioner that the writ was well founded.

3. Bank v. Barge Co., 52 Mich. 164, holding that the affidavit for the attachment is prima facie sufficient cause for issuing the writ, but, upon the facts therein set forth being denied in the application, the burden is cast upon the plaintiff to make good the cause he alleges by other competent proof, in addition to that contained in his affidavit for the writ.

Evidence.

1. Hyde v. Nelson, 11 Mich. 353, holding that a defendant in attachment, who is charged in the affidavit with being about to remove his property from the State with intent to defraud his creditors, may show by his own testimony on the hearing of the application for the dissolution of the attachment, as bearing upon his alleged fraudulent intent, that when the attachment was served he did not know that he was owing any one.

2. Blanchard v. Brown, 42 Mich. 46, holding that the existence of reasons for the plaintiff's belief that a statutory cause existed for suing out a writ of attachment is not necessarily in issue in proceedings to dissolve the attachment, but the inquiry is whether the defendant has actually done what the affiant believed him to have done.

3. Carver v. Chapell, 70 Mich. 49, holding that, on the hearing of an application for the dissolution of an attachment sued out on the ground of a fraudulent concealment and disposition of defendant's property, testimony tending to show that a portion of the property was exempt from execution, and that a portion belonged to the defendant's wife, is admissible to rebut the alleged fraud.

4. Estlow v. Hanna, 75 Mich. 219, holding that a writ of attachment issued on the ground that the debt sued for was fraudulently contracted will be dissolved if it appears that a portion of the claim is not affected by such fraud.

5. Bank v. Steele, 81 Mich. 93, holding that the intent to defraud must be found to exist as a fact in order to maintain the writ, and it is not enough to show that the debtor has conveyed or mortgaged his property, but it must be proved to have been done under such circumstances as warrant the conclusion that he actually had this fraudulent intent in his mind.

Order for Restoration of Property.

1. Price v. Reed, 20 Mich. 72, holding that there is no authority

LONG, J. Plaintiff commenced suit in the Ingham circuit court against the defendant by attachment on September 6, 1893. The affidavit upon which the writ issued averred that the defendant had assigned and disposed of his property with intent to defraud his creditors, and also that he was about to assign and dispose of his property with intent to defraud his creditors. A levy was made under the writ upon a large number of parcels of real estate in Ingham county, and the writ was personally in the statute for an order simply dissolving the attachment, and that to entitle a defendant to apply for its dissolution he must be in a position to be entitled to an order for the restoration of the property, which order the statute contemplates shall be made in any case in which the applicant is successful.

2. Bank v. Whittle, 41 Mich. 365, holding that the lien of a sheriff under an execution, and his right to custody by virtue of it, cannot be disturbed by an order for the restoration of the property to the defendant made on the dissolution of an attachment of the property.

3. Blanchard v. Brown, 42 Mich. 46, holding that it is the business of the defendant to see to the enforcement of the order for the restoration of the property.

Appeal.

1. Publishing Co. v. Association, 61 Mich. 336, holding that the recovery by the plaintiff of a judgment in the attachment suit pending his appeal from an order dissolving the attachment will not affect the question of his right to the original writ, nor will the levy of an execution issued on said judgment on the attached property so merge the attachment lien as to nullify its original force, or invalidate or impair the office of the writ previous to such merger.

2. Harvey v. Circuit Judge, 63 Mich. 572, holding that How. Stat. § 8030, does not authorize an appeal from the order of a circuit judge made in proceedings to dissolve an attachment.

3. Free Press Co. v. Association, 64 Mich. 605, holding that the abandonment of an appeal from an order dissolving an attachment is not shown by proof of the rendition of judgment in the main case pending the appeal, the levy of an execution on the attached property, its replevin by a third party and the consequent return of the execution unsatisfied, the levy of an alias execution, and the filing of a bill in aid thereof.

4. Roskopp v. Circuit Judge, 97 Mich. 628, holding that notice of trial of an appeal from an order dissolving a circuit court writ of attachment is properly served upon the attorneys of record for the plaintiff in the attachment suit, who appeared and defended for the appellant in the dissolution proceedings, and one of whom made the affidavit for appeal, in which he stated that he was one of the attorneys for the appellant in said proceeding, and made the affidavit for and in his behalf.

Review of Proceedings by Certiorari.

1. Hyde v. Nelson, 11 Mich. 353, holding that, where there is

served upon the defendant. September 23, 1893, the defendant presented a petition to the circuit judge of that county for a dissolution of the writ, and upon the hearing the writ was dissolved. The case comes to this Court by certiorari.

On the hearing before the circuit judge it appears that the plaintiff moved to quash the proceedings for the dissolution so far as related to certain lots in the city of Lansing, because it was shown by the petition for the dissolutestimony on both sides bearing upon the issue made on the application for dissolution, the Court is not at liberty to inquire into the facts of the case as thus presented, and review the findings of the commissioner on mere questions of fact.

2. Mendelsohn v. Smith, 27 Mich. 2, holding that certiorari will not lie where the plaintiff in the attachment suit claimed on the hearing of the dissolution proceedings, and claims in the petition for certiorari, to be the owner of the attached property.

3. Hitchcock v. Sutton, 28 Mich. 86, holding:

a-That where the error assigned in an affidavit for certiorari to review the decision of a circuit court commissioner refusing to dissolve an attachment is that there was no evidence showing or tending to show the existence of the grounds upon which the writ issued, it is the duty of the commissioner to return all of the evidence on that subject, which he will be presumed to have done where he states that he returns a statement of all plaints levied or affirmed before him, together with all things touching the same, in the dissolution proceeding, and, if in fact other evidence was given, the party making such claim should apply for a further return.

b-That where the return shows an entire want of evidence to support the grounds upon which the writ of attachment issued, the order of the commissioner will be reversed, and the attachment dissolved.

4. Patterson v. Goodrich, 31 Mich. 225, holding:

a-That an objection not taken before the commissioner will not be favored.

b-That a record which shows that, on the evidence of the plaintiff that the defendant was the owner of a portion only of the attached property, the commissioner erroneously decided that the defendant was not entitled to a dissolution of the attachment, and dismissed the proceeding for want of jurisdiction, but which fails to show expressly that all of the evidence is returned, is not open to the inference that the order of the commissioner was made on other evidence which satisfied him that there was sufficient cause for the attachment.

5. Taylor v. Circuit Judge, 32 Mich. 95, holding that under article 6, § 8, of the Constitution, the circuit court may issue, subject to the appellate jurisdiction of the Supreme Court, a writ of certiorari to review proceedings before a circuit court commissioner for the dissolution of an attachment; citing Thompson v. School-District, 25 Mich. 483, which rules this case.

6. Brown v. Blanchard, 39 Mich. 790, holding: