than would be required in a written notice actually person whose property was meant to (State v. Mayor of Newark, 31 N. J. L.

delivered to the be affected."

364.)

The only "notice" that was given in the present case is that contained in the resolution aforesaid, and the only portion of this resolution that has any of the qualities of a notice is contained in the clause, "all appellants are required to appear, when they will be heard in relation to said appeals." All else is only the fixing the time and place for hearing the appeal, and directing the clerk to publish the resolution. Although the statute merely declares the manner in which the notice shall be given, and does not indicate the persons who are to be notified, yet it is a rule of universal application in all proceedings by which a person's property is to be taken, or to be charged with a burden, that he shall have notice of the proceedings, and the notice which is here required to be given necessarily includes every one who is to be affected by the appeal. which, by its terms, is limited to a portion of those who may be so affected cannot be held to extend to others who may be also interested in the appeal, and is not a compliance with the statute. The direction to the clerk to publish the resolution, "as and for the notice required by law," can have no effect to enlarge the notice which was actually published, or to change its character from the terms in which it is expressed. The direction in

A notice

this clause limited the notice to the appellants, and cannot be construed as a notice to all persons interested in the subject matter of the appeal. It was an express notice to the appellants alone, and by its terms implied that they only would be heard, and it must be construed as a notice only to them. By reason of its limitation to the "appellants," it failed to be a notice to the defendant, and the supervisors acquired no jurisdiction to act upon the appeal.

The effect of the appeal was to suspend all action for the collection of the assessment until after its deter

mination (People v. O'Neil, 51 Cal. 91; Mahoney v. Braverman, 54 Cal. 570); and until the confirmation of the assessment by the board of supervisors, or the making of a new one under its direction, the contractors had no right of action against the owner. It follows that the assessment sued upon was made without authority. The judgment and order are reversed.

VAN FLEET, J., and GAROUTTE, J., concurred.

[No. 19556. Department One.-July 18, 1895.] ANDREW J. O'CONOR RECEIVER, RESPONDENT, V. ELLEN ROARK, APPELLANT.

ATTACHMENT-AFFIDAVIT REFERENCE TO TITLE OF ACTION-INDEBT-
EDNESS TO PLAINTIFF AS RECEIVER.-An affidavit for attachment in
a suit by receiver of a national bank, in the heading of which the
title of the action showing the representative character of the plain-
tiff as receiver is prefixed, but the body of which gives his name with-
out his representative title and states "that he is the plaintiff in the
above-entitled action," and that the defendant "is indebted to him" in
a specified sum, must be construed to mean that the affiant is the
plaintiff named as receiver in the title of the action, and that the de-
fendant is indebted to him as characterized in the title of the action;
and the affidavit sufficiently complies with the requirement of section
538 of the Code of Civil Procedure that it shall show that the de-
fendant is indebted to the plaintiff.

ID.-PARTICULARITY OF STATEMENT IN AFFIDAVIT.-The same particu-
larity of statement is not required in an affidavit for the issuance of
a writ of attachment as in a complaint.
ID.-STATEMENT OF AMOUNT OF INDEBTEDNESS-VARIANCE.-The fact
that the statement of the amount of indebtedness in an affidavit for
attachment expresses only the principal sum, whereas the demand, as
stated in the complaint and in the writ of attachment, is of the same
principal sum with interest thereon from a specified date at the rate
of seven per cent per annum, does not disclose a substantial variance
between the affidavit. complaint, and writ in respect of the interest,
where the nature of the indebtedness is sufficiently stated in the
affidavit to show in legal effect that it draws legal interest from the
date of its maturity.

ID. CONSTRUCTION OF STATUTE-STATEMENT OF AMOUNT IN AFFI-
DAVIT. The statute requires the affidavit for attachment to specify
only the amount of indebtedness, and not the amount of plaintiff's
demand in the complaint.

1

ID. EXCLUSION OF SETOFFS OR

COUNTERCLAIMS-CONJUNCTIVE STATEMENT.-An affidavit stating conjunctively that the amount of indebtedness is "over and above all legal setoffs and counterclaims," is a sufficient compliance with the requirement of the statute that the indebtedness must be shown to be "over and above all legal setoffs or counterclaims."

APPEAL from an order of the Superior Court of San Diego County denying a motion to discharge and quash a writ of attachment. E. S. TORRANCE, Judge.

The facts are stated in the opinion.

Trippet & Neale, for Appellant.

The affidavit for attachment does not show that the defendant was indebted to plaintiff, but shows indebtedness to Andrew J. O'Conor, individually, and not in his representative capacity. (17 Am. & Eng. Ency. of Law, 495; Stilwell v. Carpenter, 2 Abb. N. Cas. 238; 1 Am. & Eng. Ency. of Law, 388; Stockton etc. Assn. v. Chalmers, 75 Cal. 332; 7 Am. St. Rep. 173; Code Civ. Proc., sec. 538; Drake on Attachment, 107 a.) A defective affidavit cannot be aided by the complaint. (Kohler v. Agassiz, 99 Cal. 16.) The affidavit does not specify the amount of indebtedness, no interest being mentioned. (Bowers v. London Bank, 3 Utah, 417; Kennedy v. California Sav. Bank, 97 Cal. 93, 99; 33 Am. St. Rep. 163; Kohler v. Agassiz, supra; Dunn v. Mackey, 80 Cal. 107: Espey v. Heidenheimer, 58 Tex. 662; Joiner v. Perkins. 59 Tex. 300; 2 Wade on Attachment, 687; Moore v. First Nat. Bank, 82 Tex. 537; Moore v. Corley (Tex. App.. June 18, 1890), 16 S. W. Rep. 787; Evans v. Tucker, 59 Tex. 249; Grebe v. Jones, 15 Neb. 312, cited in Drake on Attachment, sec. 96 a; Wright v. Snedecor, 46 Ala. 92.) The affidavit does not follow the statute in giving the amount of indebtedness over and above all legal setoffs or counterclaims. (Broughton v. McIntosh, 1 Ala. 103; 22 Am. & Eng. Ency. of Law, 213, 372; Code Civ. Proc., sec. 438; St. Louis Nat. Bank v. Gay, 101 Cal. 289; Lampkin v. Douglass, 10 Abb. N. Cas. 342; Moody v. Levy, 58 Tex. 532; Wilke v. Cohn, 54 Cal. 212.)

V. E. Shaw, for Respondent.

The same particularity of statement is not required in the affidavit for attachment that is required in a pleading. (Bank of California v. Boyd, 86 Cal. 386.) An affidavit for attachment, corresponding with the petition as to the names of the parties and the amount claimed, and filed on the same day, sufficiently identifies the cause. (Munzesheimer v. Heinze (Tex. June 7, 1889), 11 S. W. Rep. 1094; Wade on Attachment, sec. 56; Kohler v. Agassiz, 99 Cal. 9.) The amount of indebtedness stated in the affidavit is not required to be the same as that averred in the complaint. (Bowers v. London Bank, 3 Utah, 417; Kennedy v. California Sav. Bank, 97 Cal. 93; 33 Am. St. Rep. 163; Code Civ. Proc., sec. 538.) A substantial compliance with the requirements of the statute respecting attachment is sufficient. (Wade on Attachment, sec. 56; Simpson v. McCarty, 78 Cal. 176; 12 Am. St. Rep. 37; Kohler v. Agassiz, supra.)

VANCLIEF, C.-This appeal is from an order denying defendant's motion to discharge and quash a writ of attachment issued in the above-entitled action, on the ground that the affidavit upon which the writ was issued is defective and insufficient. The following is a copy

of the affidavit:

"IN THE SUPERIOR COURT OF THE COUNTY OF SAN DIEGO, STATE OF CALIFORNIA.

"ANDREW J. O'CONOR, Receiver

of the Consolidated National Bank of San Diego, Plaintiff,

"Andrew J. O'Conor, being duly sworn, says that he is the plaintiff in the above-entitled action; that the defendant, Ellen Roark, in the said action, is indebted to him in the sum of seven thousand seven hundred and

fifty dollars, over and above all legal setoffs and counterclaims, upon an express contract for the direct payment of money, to wit: An assessment and requisition of $100.00 per share upon the shareholders of the Consolidated National Bank of San Diego, levied and made October 25, 1893, by James H. Eckels, comptroller of the currency, under and by virtue of the laws of the United States of America, and against the defendant, Ellen Roark, as one of the stockholders in said bank, and who was, on June 21, 1893, and ever since has been, and now is, the owner and holder of seventyseven and one-half (772) shares of the capital stock of зaid Consolidated National Bank of San Diego, and that the said defendant is a nonresident of this state.

"That the said attachment is not sought, and the said action is not prosecuted, to hinder, delay, or defraud any creditor or creditors of the said defendant. "ANDREW J. O'CONOR."

The grounds of the motion will be stated and considered in the order in which they are presented.

1. It is contended that the affidavit does not show that the defendant was indebted to the plaintiff in his representative character as receiver.

The title of the action, prefixed as a heading to the affidavit, characterizes the plaintiff as "Receiver of the Consolidated National Bank of San Diego"; and, referring to this heading, the affidavit states that the affiant, Andrew J. O'Conor, "is the plaintiff in the above entitled action." This means that he is Andrew J. O'Conor, receiver of the Consolidated National Bank of San Diego. The next statement, "that the defendant in said action is indebted to him," plainly means that defendant is indebted to Andrew J. O'Conor, as characterized in the title of the action. The pronour "him" relates to and stands for Andrew J. O'Conor. receiver of the Consolidated National Consolidated National Bank of San Diego, the plaintiff in the action, else it is not true, as stated in the affidavit, that Andrew J. O'Conor is the plaintiff in said action. It follows that the affidavit