Majority
p. 78In the matter of M'Kinley & Co. absent debtors.
Headnote
IV/TUNRO in dor fee of a bill of exchange drawn XvJL |yy M'Kinley and Company, fued out art attachment under the A61 palled 4th April 1786, for relief againíl abfconding and abfent debtors, and feized a vejfel, the property of M'Kinley & Co. Afterwards Munro received the amount of the bill from Wheeler his indorfer, but it was agreed between Munro and Wheeler, that the proceedings ihould Hill go on for the benefit of the latter, and Munro be confidered as his truifee. Application was then made on behalf of M'Kinley & Co. to the Recorder for a JuperJedeas, upon the ground that plaintiff, after having been fatisfied for his demand, could not Hill retain the attachment. The Recorder allowed the JuperJedeas, from which there was an appeal to this Court.The 22d fe&ion of (he A6t pro
p. 79
vides, Ci That if any perfon againft whofe eftate “ or effefh inch warrant of attachment ilia 11 be “ iffued, Ihall at any time before traftees are ap~ “ pointed, apply to the judge who lira!] have iffued “ fuch warrant, and give fuch fecurity as fuch judge “ Jhall diredi and approve, to the perfon or perfons “ at whofe inftance fuch warrant iffued, to appear “ and plead to any fuit or action to be brought “ within fix months thereafter, &c. and to pay all “ fuch fums as may be adjudged in fuch fuit or ac- *' tion, then fuch judge ihall iffue a fuperfedeas.” And the 23d feftion provides, “ That in all cafes where, “ upon any fuch attachment or attachments, any “ fhip or veffel, or any part thereof, ihall be feized “ or attached, it ihall be lawful for the judge who “ ihall have iffued fuch warrant or warrants to “ caufe fuch ihip or veffel, or part thereof, fo feiz- “ ed or attached, to be valued by indifferent per- “ fons; and if any perfon. will give jeeurity to be “ approved of by fuch judge, to the people of the “ State of New-York, for the benefit ofi the creditors “ of fuch debtor, to pay the amount of fuch valua- “ tion to the traftees to be in inch, cafe appointed, “ then fuch judge Ihall caufe fuch fhip or veiled to (i be difeharged from fuch attachment,”
Although a payment may be equivalent to giving the fecurity required by the 22d fecrion ot the A£t, as has been infifted in the argument, yet that certainly muft. be a payment by the principal debt- or, and not by his furety, or one who is collaterally refponfible; the applicants therefore do not come within that fedlion. The next fedion provides ex-
p. 80
prefsly that the fecurity fliall be given for the benefit of all the creditors, and therefore, as the in-dorfer here who paid the money muft be confidered as a creditor, he has a right to avail himfelf of this attachment, and Munro may be confidered a trufl.ee for his benefit.
If the profccutor is paid, and the applicants would avail themfelves of it, they muft refort to their plea.
Let the order be reverfed.