Minnesota Supreme Court, 1866

Jacoby v. Drew

Minnesota Supreme Court · Decided January 15, 1866 · Berry

11 Minn. 408 (Minnesota Reports)

Counsel

William Mitchell, for appellants., Berry & Waterman, for respondent.

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Citation treatment has not been reviewed for this case. The notes below come from the citation graph and the Minnesota Revisor's amendment records, not from a review of how later courts treated this decision.

(as of 9/30/2026)

Last cited by a Minnesota appellate court in 1874, among the opinions in this site’s citation index.

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Cases that cite this one

3 later published cases cite this decision.

Standard Implement Co. v. Lansing Wagon Works (Kan. 1897)
City of Faribault v. Misener (Minn. 1874)
Hicks v. Mendenhall (Minn. 1871)

This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.

Opinion of the Court

By the Cowrt

Berry, J.

-The warrant of attachment issued by the clerk, without a preliminary allowance by the judge, was, as heretofore decided by this court, unauthorized and void. Lovejoy v. Morrison, 6 Minn. 183; Zimmerman v. Lamb, 7 Minn. 423; Guerin, v. Hunt, 8 Minn. 487.

The undertaking required by statute in case of attachment, does not possess the necessary elements of an ordinary contract. Owing its binding force and obligation entirely to the statute, it follows that it is only in the cases in which it is authorized by statute that it can possess any validity.

*410It is obvious, therefore, that the undertaking upon which this action is founded, is invalid, and, therefore, its breach furnishes no cause of action, because the constitutional statute neither contemplates nor authorizes the issue of a warrant by the clerk without allowance thereof by the judge,- nor of course the execution or use of an undertaking for the purpose of procuring the same.

The warrant and the undertaking are alike void. The facts of the case of the State v. The City of Buffalo, 2 Hill, 434, relied upon by the counsel for the respondent, make out a ratification of an assumed agency, and there is nothing of that kind here.

The order overruling the demurrer is reversed, and the cause remanded.

Case-law data current through September 30, 2026. Source: CourtListener bulk data.