property was released, the bond did stand as security for the property, or took its place, but its effect was to dissolve the attachment. "By giving the statutory bond," Mr. Wade says, "the attachment is dissolved, and the action proceeds to judgment as an action in personam." And again: “When a bond is given to pay whatever judgment may be rendered, and it is approved and the property released, the attachment is dissolved, and it is no longer a proceeding in rem, and no plea in abatement traversing the ground of the attachment can be entertained": Wade on Attachment, secs. 183, 186. When, therefore, the undertaking was given, and by reason thereof the plaintiffs released and surrendered the property to the defendant Dipascuale, the attachment was dissolved, and the undertaking took the place of such property, and the action thereafter ceased to be in rem.

There was, in fact, no attachment in existence to be dissolved at the death of the defendant Dipascuale. Nor is it true, if there was a subsisting attachment, that the death of the defendant abates or dissolves it. In Mitchell v. Schoonover, decided at the present term of this court, it was held that the death of a defendant after the levy of an attachment does not vacate or dissolve it. So that in any view the objection is untenable. Another objection urged is, that the undertaking is not such as is required by statute, and that the court erred in holding it sufficient as a common-law obligation, on the ground that a bond is a writing under seal, and that an undertaking being only a promise to pay the debt of another, and not under seal, no consideration can be presumed; but the same must be expressed in the writing. But in the case at bar there is a good and valid consideration expressed in the undertaking, and the matter of the seal is of little signifi

cance.

A bond or undertaking, as either may be prescribed by statute, to be given to secure the release of property attached, are designed to serve the same purpose and to stand upon the same consideration, and when an action is brought upon either, are governed by like principles. If a creditor voluntarily consents to dissolve an attachment levied upon the goods of his debtor, and relinquishes his lien at the request of any one, the promise of such person to pay the debt thus secured is made upon a valid consideration. The surrender of the lien, being a detriment to the creditor, is a sufficient consideration for the promise; but to enforce such promise or

engagement, it is indispensable that it be in writing. When the defendant by his undertaking in writing promised and agreed to pay the amount of any judgment which the plaintiffs might recover against the defendant in that action, such undertaking was founded upon a valid legal consideration which the defendant Dipascuale received by the return to him of the property attached, and was good as a common-law obligation.

In Central Mills Co. v. Stewart, 133 Mass. 462, where the bond given was not such as the statute required, but being given and the property released, the court said: "But the creditor may voluntarily consent to dissolve an attachment by which he has sought to secure his debt, and if he does so at the request of any one, a promise by such person to pay the debt sought to be secured, either before or after judgment, is made upon a valid legal consideration. The bond by which the defendant agreed to pay the amount of any judg ment which the plaintiffs might recover, etc., was therefore made upon sufficient consideration, which the defendant received by the surrender of the property attached, and was good at common law." Now, in the case at bar, the undertaking was duly executed by the defendant and accepted by the plaintiffs, and by their order the attachment was thereupon dissolved, and the property surrendered to its owner. The object of the undertaking, and its purport, is too plain to admit of controversy.

There is no question but what it is founded upon a valid legal consideration, is violative of no statute, and contains no illegal provisions. Why, then, is it not a good common-law obligation? The principle is familiar, that bonds intended to be taken in compliance with statutes, although not done so, if entered into voluntarily and founded upon a valid consideration, and do not violate public policy or contravene any statute, will be enforced by common-law remedies: Palmer v. Vance, 13 Cal. 553; Munter v. Reese, 61 Ala. 395; Wade on Attachment, sec. 187; Kelly v. McCormick, 28 N. Y. 322, 323. A bond or undertaking given to obtain the release of property seized upon attachment is not rendered invalid by irregularity in making such attachment. By means of it, the property was released and surrendered, and the plaintiffs consented to dissolve the attachment, and the defendant in this action. cannot defeat his liability because of some irregularity in Buch proceeding. The undertaking served its purpose to

secure the release of the property attached, and the defendant is estopped now from setting up such irregularities: Carlon v. Dixon, 12 Or. 148; Coleman v. Bean, 14 Abb. Pr. 38. This result necessarily obviates the objections in respect to the attachment proceedings, and dispenses with the necessity of any further examination of them. Nor is it essential that the complaint set out the facts which authorize the issuing of the attachment, and consequently there was no error in overruling the demurrer.

In regard to the objections raised as to the death of Dipascuale and his true name, and as to the appointment of the administrator, it is sufficient to say that we have examined the record and the argument in support of the objections, and are not satisfied that any prejudicial error is shown. It is to be borne in mind that in cases of this character, technical defenses are not favored, and the case does not stand as to objections as it would between the parties to the original action.

It is objected also that the judgment is in excess of the amount named in the bond, and that such excess is error; but it is not in excess of such sum with interest from the breach, even though it be conceded that the liability under the undertaking is to pay "the amount of any judgment which may be recovered against the defendant in this action."

Upon the whole, we think the judgment must be affirmed.

RELEASE FROM ATTACHMENT, SUFFICIENCY OF BOND: Cole v. Parker, 7 Iowa, 167; 71 Am. Dec. 439, and note 443.

STATUTORY BONDS, defects which do not invalidate: See Pratt v. Wright, 13 Gratt. 175; 67 Am. Dec. 767; People v. Hartley, 21 Cal. 585; 82 Am. Dec. 758, and note 761.

WHAT IRREGULARITIES AVOID ATTACHMENT: Fridenberg v. Pierson, 18 Cal. 152; 79 Am. Dec. 162. Where a writ of attachment was returned three days before the return day, without personal service on defendant, who was proceeded against by publication, and a judgment rendered against him, the return was premature, and the judgment was reversed: Drew v. Claypool, 61 Mich. 233; and an affidavit for an attachment is rendered fatally defective by an alternative statement therein to the effect that the payment of the contract on which the action is brought has not been secured by any mortgage upon real or personal property, or, if originally so secured, that such security has become valueless without any act of plaintiff: Winters v. Pearson, 75 Cal. 553; but an affidavit for attachment made upon belief only, though defective, is not a nullity, and by failing to object to its sufficiency in the court below, the defect is waived, and cannot be made available on appeal: Landfair v. Lowman, 50 Ark. 446; nor does an affidavit for attachment against a firm, which fails to state the individual names of the members, but does state the firm

name, render the attachment void: De Leon v. Heller & Co., 77 Ga. 740; an affidavit for an attachment, which states that defendants are non-residents of the state, but does not state that the plaintiff had a just demand against defendants, and the amount due plaintiff, after allowing all just credits and set-offs, is not so fatally defective as to fail to confer jurisdiction, and a judgment thereunder could no more be held a nullity than could a judgment be held void in a collateral proceeding, because founded upon a defective petition: Burnett v. McCluey, 92 Mo. 230.

AMENDMENT OF WRITS OF ATTACHMENT, AND OF PAPERS ON WHICH THEY ARE BASED: Barber v. Swan, 4 G. Greene, 352; 61 Am. Dec. 124, and note 125-131. The affidavit for attachment sworn to before a notary public, who is the attorney for plaintiff in the action, is only voidable, and may be amended: Swearingen v. Howser, 37 Kan. 126; and where an affidavit for attachment contains the essential allegations of a complaint, the failure to file a separate complaint is a mere irregularity, which may be cured by amendment: Lehman v. Lowman, 50 Ark. 444. An amendment to a petition for attachment varying the date on which the original petition alleged that the debt was due will not vitiate the attachment: Donnelly v. Elser, 69 Tex. 282; and amendments after judgment may be allowed to conform a pleading to other proceedings, but where an amendment by an intervenor in an attachment case sets up new issues, it comes too late after judgment on the original petition and a sale of attached property: Bicklin v. Kendall, 72 Iowa, 490. And in Alabama, since the code of 1887, an affidavit for attachment may be amended in matters of substance as well as in matters of form: Code, sec. 2998; Robinson v. Holt, 85 Ala. 596; but on a motion to discharge a writ of attachment, because improperly or irregularly issued, the affidavit on which the writ was issued cannot be amended: Winters v. Pearson, 72 Cal. 553. Yet where proceedings in attachment are irregular and amendable, but not void, and no objection is made thereto by defendant in the action, third parties cannot attack such proceedings collaterally: Connelly v. Edgerton, 22 Neb. 82.

ANDERSON V. Bennett.

[16 OREGON, 515.J

MASTER AND SERVANT. — GENERAL DOCTRINE THAT MASTER IS NOT LIABLE FOR INJURIES caused by the negligence of a fellow-servant engaged in the same common employment is now regarded as settled law. The reason commonly assigned for this exemption is, that by his contract of employment, the servant assumes the risks incident to it, and that both he and his master had them in contemplation in fixing the compensation. MASTER AND SERVANT. — LATER CURRENT OF JUDICIAL DECISION, AS WELL AS LEGISLATIVE ACTION, indicates a marked departure from the general rule, that all servants employed by the same master, and working under the same control and in a common employment, are fellow-servants, and a disposition is manifested to so limit and restrict the rule as shall make the master answerable for his just share of responsibility to his servant for injuries sustained in his employment.

MARKED CHANGE IS TAKING PLACE FROM OLD RULE OF LAW as to servants clothed with partial authority only, such as a foreman or upper servant, upon the principle that when a master delegates any duty which he owes to his servants, he is liable for its proper performance. CONCLUSION TO BE DEDUCED FROM LATER AUTHORITIES IS, THAT MASTER IS CHARGEABLE for any act of negligence in so far as the servant is charged with the performance of the master's duty to his servants, such as the selection of competent servants, the furnishing of suitable tools and instrumentalities, the providing of a reasonably safe place in which to work, and the observance of such care as will not expose the servant to hazards and perils, which may be guarded against by proper diligence, etc.; and to the extent of the discharge of these duties which the master owes to his servants by the middle-man or vice-principal, the latter stands in the place of the master.

MASTER OWES DUTY TO EVERY SERVANT TO PROVIDE a reasonably safe place at which to work, consistently with the nature of the undertaking, and although he is not an insurer, he is bound on the same principle by the law to exercise due and proper care in this regard as he is in hiring competent servants, or in supplying reasonably safe machinery or other appliances for the use of his servants. This is regarded as a personal or absolute obligation, and if it is intrusted to a servant, such servant is the representative of the master, and any negligence on his part is the negligence of the master.

MASTER'S OBLIGATION NOT TO EXPOSE SERVANT TO PERILS which by proper diligence may be guarded against becomes more important, and the degree of diligence and care to be exercised in its performance the greater, in proportion to the dangers which may be encountered. WHERE MASTER WAS NOT PERSONALLY PRESENT AND DID NOT PROMULGATE or establish any suitable or needful rules and regulations for the safe and proper conduct of the work, and the direct management or execution of the work during his term was placed in charge of a superintendent or foreman, there necessarily devolved upon him the duties in this particular which the master owed to his servants. As a consequence, it became the duty of such foreman to provide for the safety of the servants under his control and subject to his commands, by the exercise of such care in the management and conduct of the undertaking intrusted to him as would render reasonably safe the place at which the employees must apply the machinery and do their work; failing in which, his negligence should be deemed the negligence of the master.

George W. Yocum and F. Clarno, for the respondent.

H. Y. Thompson and George H. Williams, for the appellant. LORD, J. This is an action to recover damages for personal injuries caused by the alleged negligence of the defendant's two servants and agents. The complaint in effect is, that the defendant was engaged in constructing the tunnel on the line of the Northern Pacific Railroad Company, and that the plaintiff was engaged in his servicce for hire as a common laborer during the time therein mentioned; that Thomas Cosgrove was the foreman, manager, and superintendent of said