Majority
p. 603Ex parte Schroeder. ALBANY, Feb. 1827.
Headnote
3. T. Irving, first judge of the C. P. in the city and county of Neio-York, on the application of Hans Harms, granted an attachment against Schroeder, as an absent debtor, within the statute, (1 R. L. 157.) Harms, the creditor, at the time of suing out the attachment, was a citizen of Hamburg; not a resident of the state of New- v t , .r orle, nor domiciled here, nor in the United States ; but was transiently in New-York. Schroeder, the debtor, was then, and continues to be, a permanent resident ofa foreign creel-derthe absent debtor^c™1™* *ail^j a ⅛¾ or aiding abroad; thedebt not being con-
p. 604
Charleston, South Carolina ; never resided in the state of New-York; and was esteemed solvent, and in good credit as a merchant. The property attached was merchandize, which arrived at the city of New-York in a ves» sel bound for Charleston, which put into New- York by reason of stress of weather.
The attachment was granted early in February, 1827. But on the above facts being shown by affidavit, judge Irving ordered cause tobe shewn before him on the 19th, why the attachment should not be superseded. Cause being shown accordingly, he, on the next day, delivered his opinion as follows :
Irving, Judge. The 1st section of the statute for relief against absconding and absent debtors, (II?. L. 157,} declares that any person, being indebted within this state, who shall secretly depart, or be concealed, &c. may be proceeded against under the act. The 8th section provides for the appointment of trustees ; and the sections which follow to the 17th, prescribe their conduct and duties. The 17th section states how they shall make distribution ; and the 18th, who shall be considered creditors, and entitled to share in the debtor’s property. The 19th also relates to the creditors ; the necessity of their notifying the trustees of their demands, and the consequences of their neglect.
Then comes the 20th section, which appears to be in continuation of the 18th and 19th. It is, “ that any creditor out of this state, shall be deemed a creditor within this act; and his attorney, on producing a letter of attorney duly authenticated, &c. may proceed, and act in the same manner under this act, as if the creditor himself was present.”
Does this relate to his being entitled to claim a share in the distribution, after trustees are appointed ? And is it restricted to this ? or is a foreign creditor authorized to proceed against the property of a foreign debtor ? If so, will not the provision conflict with the 1st section of the aret, Vvhich states that the debtor «hall be indebted wiihki
p. 605
this state ? And with the 23d, which provides that the property of every foreign debtor who resides out of this state, and is indebted within it, shall be liable to be attached, sold, &c. in like manner as the estates of debtors within this state ?
The 1st section provides for the attaching of the property of a debtor who resides in this state ; is indebted within it, and absconds. The 23d section provides for the attaching of the property of a debtor who resides without this state ; hut is indebted within it. Both would appear to contemplate that debts only of this description could be the foundation of an attachment under this act.
The decision in 6 John. Cli. Rep. 185, was in the case of a debtor who resided in this state, and absconding from it; his creditor residing abroad. The case in 5 Cowen, 293, was that of a debtor who fled from England, concealed himself here to avoid arrest, and was pursued by his creditor.
The reasons given by the supreme court in the case of Fitzgerald, for not allowing a foreign creditor to attach here the property of his foreign debtor, is very strong; and I do not think I would be justified in going farther than the supreme court has authorized in 5 Cowen, which is the case of a foreign debtor, who fled from his creditor, came within our jurisdiction, and concealed himself here, to avoid being made to account.
Under such circumstances, as the supreme court is in session, I shall leave the parties to make application for a stipersedeas or relief to them ; and, in the mean timé, order all proceedings to be stayed.
A motion for a supersedeas was accordingly made to this court.
S. Stevens, for the motion,
J. Anthon, contra.
We think judge Irving was right in nolding that Schroeder was not indebted within this state. Unless this be so, the case is not embraced by the provisions
p. 606
of the statute in question. We cannot presume that the debt upon which Harms proceeded, was contracted in this state. For aught that appears, the debtor was never within our jurisdiction. Could even a resident creditor proceed by attachment here upon a contract made abroad ?
Fitzgerald's case, (2 Caines, 318,) is exactly in point; and has not been overruled or questioned, except so far as it denies the right of a foreign creditor to proceed under the act in any case. Robinson v. Cooper, (6 John. Ch. Rep. 186,) was the case of a foreign creditor proceeding against a debtor resident in this state ; and in Caldwell's case, (5 Cowen, 293,) the foreign debtor had fled to this state, and was concealed here ; and, according to our recollection. there was satisfactory evidence of his being domiciled here,[1]
Supersedeas granted.
(a) (a) The court, I am sure, considered the debtor domiciled in this state,¡under the circumstances of that case. I reported the case, merelydn reference to the right of a foreign creditor, independent of the question where his debtor is domiciled.