stroyed and a consideration of that branch of the controversy becomes unnecessary.

Section 249, of the Civil Code of Practice, provides that "in an action to enforce a mortgage of or lien upon personal property * * if it satisfactorily appear, from a verified petition, or from affidavits, of the proofs in the cause, that the plaintiff has a just claim, and that the property is about to be sold, concealed or removed from the State; or if the plaintiff state on oath that he has a reasonable cause to believe and does believe that, unless prevented by the court, the property will be sold, concealed or removed from the State, an attachment may be granted against the property."

Thus, in order to justify the issuing of a specific attachment it must appear, first, that the party seeking it has a mortgage or lien upon the property sought to be subjected to the attachment. The petition and amended petition show that appellee had a mortgage on the property described therein to secure him in the payment of the balance due on his debt, amounting to $1,050, with interest.

The next prerequisite is that it must appear from the verified petition or affidavit or the proofs in the case that the plaintiff has a just claim. The affidavits filed in the case state that the claim is just, and appellant, in his testimony, admits an indebtedness upon this mortgage of the balance claimed.

And lastly, it must appear in the affidavit and proof that the property is about to be sold, concealed or removed from the State, or the plaintiff must state on oath that he has reasonable cause to believe and does believe that, unless prevented by the court, the property will be sold, concealed or removed from the State. Unlike the affidavit and proof required in order to procure the issual of and sustain a general order of attachment, the affidavit and proof for a specific attachment need not allege that the property is about to be sold, concealed or removed from the State with a fraudulent intent to cheat, hinder and delay creditors, etc. The fraudulent intent need be neither alleged nor proven, but the ends of the law are satisfied when the allegation is made and supported by proof that the property is about to be sold or concealed or removed from the State, or that the plaintiff has reasonable cause to believe and

does believe that, unless prevented by the court, the property will be so sold, concealed or removed from the State. In the affidavits filed by appellee he alleged that the property was about to be sold, and appellant testified that it was about to be sold, thus confirming the statement made by appellee in his affidavit and furnishing him the necessary proof to support his allegation to the effect that it was about to be sold.

No brief has been filed by appellant and we are not advised as to the ground upon which the chancellor rested his opinion upon this point. However, it must have been upon the idea that, in order to support a specific attachment, it was necessary that appellee show that the contemplated sale of the property by appellant was about to be made with a fraudulent intent to cheat, hinder and delay his creditors. In Lock v. Boles, 14 Ky., Rep., 573, Bell v. Mansfield's Assignee, 12 Ky. Rep., 89, and Schnabel v. Jacobs, et al., 105 Ky., 774, it was expressly held that, in order to support a specific attachment, it is not necessary to allege or prove an actual fraudulent intent upon the part of the debtor. This distinction between the affidavit and proof required in order to support a general order of attachment and that required to support a specific attachment evidently grows out of the fact that, in cases where a general order of attachment is sought, the creditor has neither mortgage nor lien upon the property sought to be subjected to the payment of his debt. He has no claim upon it other than that which the law gives him by virtue of his attachment, and this he is not entitled to except upon a showing on his part that the debtor is about to dispose of his property with a fraudulent intent to cheat, hinder and delay his creditors, and therefore, in order to prevent him from doing so, the statute provides the attachment may be issued. But where the property of a debtor is encumbered by a lien or mortgage, the party holding the lien or mortgage has, by virtue thereof, such an interest in the property as that the debtor may not dispose of it or attempt to dispose of it without the consent of his creditor, and when he does so the creditor may at once, by complying with the Code provision supra, cause a specific attachment to be issued and levied thereon.

Since the affidavit filed by appellee conformed to the requirements of the Code provision and was abundantly supported by the proof, the chancellor erred in discharg

ing the specific attachment. On the contrary, he should have sustained it and refused to permit appellant to set up or assert a claim for damages because of the suing out of the said specific attachment. Plaintiff was entitled to have a judgment for the balance of his mortgage debt with interest and costs.

The judgment upon both the original and cross appeals is reversed and cause remanded with instructions to enter a judgment in conformity with this opinion.

Appeals

Combs, et al. v. Bates.

(Decided April 23, 1912.)

Appeal from Knott Circuit Court.

Party Accepting Satisfaction of Judgment May Appeal.The appellant may accept satisfaction of the judgment and still prosecute an appeal from it where he recovers only part of his claim.

H. H. SMITH and B. F. COMBS for appellant.

O'REAR & WILLIAMS for appellee.

OPINION OF THE COURT BY CHIEF JUSTICE HOBSONOn Motion to Dismiss Appeal.

Section 757 of the Civil Code, among other things, provides :

"But when a party recovers judgment for only a part of the demand or property he sues for, the enforcement of such judgment shall not prevent him from prosecuting an appeal therefrom as to so much of the demand or property sued for that he did not recover.

Before this amendment to the Code was made, it was held that a party who accepted satisfaction of a judgment could not appeal from it. The purpose of the amendment was to change the rule. For, manifestly, if the appellant may enforce the judgment, he may accept

satisfaction from the appellee, without losing his right to appeal. To enforce the judgment is to accept satisfaction of it.

The motion to dismiss the appeal is overruled.

INDEX

ACCEPTANCE-See Order for Payment of Money.

ACTIONABLE NEGLIGENCE-

1.

2.

3.

page.

Dragging a Boy on Train-Refusal to Allow Him to Get Off—
Injury Causing Death.-It is actionable negligence for those
in charge of a railway train to drag a thirteen year-old boy
upon a railway car and to refuse to let him get off when he
undertook to leave, and in jerking him when he attempted to
leap off, which caused him to fall under the wheels and was
thereby so injured as to cause his death. Lewis' Admr. v.
Bowling Green Ry. Co.....

...

460

Piling Snow in Street.-Property owners may after heavy
falls of snow remove the same from their buildings and prem-
ises and pile it in the carriage or drive way of the street in
such a manner as not to unreasonably interfere with the
use of the street, and let it remain there until by the exer-
cise of reasonable care it can be removed. But this license
to obstruct the street does not authorize the property owner
to permit the snow to remain on the street indefinitely or for
an unreasonable time. L. & N. R. R. Co. v. Mulverhill....... 361
Permitting Pile of Snow to Remain Unreasonable Time.-
Where snow from the roof of one of its buildings was piled by
a railroad company in the street on January 7th, and per-
mitted to remain until the 13th, it was guilty of actionable
negligence to a person who suffered injury on the 13th of Jan-
uary on account of the obstruction. Idem....

361
4. Negligence, Contributory.-Whether the driver of a team of
horses who was injured in attempting to drive his team over
a pile of snow and ice in the street was guilty of contribu-
tory negligence was under the circumstances of this case a
question for the jury. Idem....

1.

ACTION-RIGHT
Pleading, 2-
Pleading-Instructions.—In an action for damages for the
failure to deliver an engine within a reasonable time, and for
loss of sales of beer, whiskey, and the loss of use of whiskey
license, an instruction directing the jury that they might find
for the plaintiff the value of the beer, whiskey, and the value
of the use of the Government license was error, there being
neither allegation nor proof that the defendant knew the pur-

ΤΟ SUE-PARTY IN INTEREST-See

361