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Besley v. Palmer

1 Hill & Den. 482 Court N.Y. Sup. Ct. English

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p. 482
Besley and another vs. Palmer and Rosevelt, impleaded with L. P. Sanger.

Headnote

Proceedings by attachment under the statute relating to absconding, concealed, and non-resident debtors, may be instituted by assignees of the demand sought to be collected, in their ovm names; and the bond executed by the debtor and his sureties, on applying for a discharge of the attachment, will be valid though drawn in the same way.
An attachment under that statute does not lie on a judgment rendered by the court of a neighboring state.
Nor will it lie on the original contract debt for which such judgment was recovered. The judgment of a court of a neighboring state is no less effectual in extinguishing the demand on which it was rendered, than the judgment of a court strictly domestic.
Demurrer to declaration. The action was on a bond given under the statute, (1 R. iS. 764, 773, § 55 et seq. 2d ed.) relating to attachments against absconding, concealed, and non-resident debtors. The declaration set out the attachment proceedings, showing that the attachment was issued on the petition of the plaintiffs as the attaching creditors, against the property of James Y. Sanger, ■ Lucien P. Sanger, and David Sanger. Tfi.e declaration further set forth that property had been seized on the attachment; that Lucien P. Sanger, one of the defendants, applied pursuant tó § 54 of the statute above referred to, for a discharge of the attachment, and that thereupon the bond in question was executed by said Lucien, with Palmer and Rosevelt, the other de
p. 483
fendants, as his sureties. It further appeared from the attachment proceedings as detailed, and from other independent averments in the declaration, that the plaintiff’s demand upon which the attachment issued and which was claimed as recoverable on the bond, consisted originally of a joint and several promissory note, executed by the said J. Y., L. P., and D. Sanger, to the plaintiffs; that they (the plaintiffs) caused a suit to be commenced upon the note, against the said J. Y., L. P., and D. Sanger, in a circuit court of the state of Indiana, wherein judgment was recovered against L. P. Sanger, he alone having been arrested; that said suit and judgment were nominally in favor of one Elias Smith, but the plaintiffs were the real parties in interest, and are still the owners, &e.; that the judgment was in full force and unreversed, &c. at the time of commencing the attachment proceedings; and that neither the said note or judgment had ever been paid or satisfied, &c.
The defendants demurred to the declaration, and the plaintiffs joined in demurrer.
J. H. Raymond, for defendants,
J. S. Bosworth, for plaintiffs.

The proceedings and declaration are well enough in treating the plaintiffs, though mere assignees of the debt for which they sued out the attachment, as the nominal creditors. It is no objection that the bond is taken to them in their own names. (Vid. 1 R. 8 . 793, 2d ed. § 10.) But the commissioner had no jurisdiction. The attachment wás nominally against the property of J. Y. Sanger, L. P. Sanger, and D. Sanger, who were originally indebted on a joint and several promissory note, upon which all were sued in a circuit court of the state of Indiana, L. P. Sanger alone arrested, and judgment rendered against him alone. His property was attached here, but delivered to him on his executing the bond in question.

An attachment does not lie on a judgment of a neighbor

p. 484
ing state, for the simple reason that the 1 M. 8. 765, 2d ed. which gives' the remedy by attachment, does not extend it beyond a judgment rendered in this state. (§ 3.) It is true that the first seetion, (subdivision 2,) covers a debt on contract; and the declaration seeks to reach that ground by going behind the judgment. That cannot be done. The judgment extinguished the simple contract debt as to L. P. Sanger. We are told that this is the judgment of a neighboring state. But who can deny, since Mills v. Duryee, ( 7 Cranch, 481 ,) and Hampton v. McConnell, ( 3 Wheat. 234 ,) that a judgment in one of our sister states must be holden to work the same effect upon the original demand as if it were obtained in this court ? At least the declaration shows no debt valid within the attachment law against L. P. Sanger; a thing made by the statute (§ 58) quite as necessary in an action on the bond, as it is against the absent debtor in the first instance.

Judgment for defendants.

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