Majority
p. 454Anonymous. moved to set aside the attachment which had been issued against the defendants, who were a foreign corporation, on the ground that it was allowed by a supreme court commissioner while the court was sitting in the third wTeek of the last July term. He cited Bennett v. Hartford Ins. Co. ( 19 Wend. 46 .) distinguished this from the case cited. There the attachment was issued within the first two weeks of the term 3 but here it was not issued until the third week, which should be regarded as in vacation for all the purposes of this proceeding, although the court was still sitting. (2 R. S. 197, § 4—6.)
Headnote
An attachment against a foreign corporation cannot be allowed by a judge or com missioner during the actual session of the court.Accordingly, where an attachment was thus allowed, though during the third week of the session; held, irregular.
E. F. Smith
O. Meads, for the plaintiff,
Attachments against foreign corporations may be issued by the court—which must mean when it is in session—or by a judge or commissioner “ in vacation.” (2 R. S. 459, § 16.) The intention of the legislature seems to have been that the court should be moved whenever that course wTas practicable 3 but in other cases, to prevent a failure of justice, the writ might be allowed at chambers. For some purposes the terms of the court are considered as ending with the second week 3 but the issuing of attachments is excepted from that provision. (2 R. S. 197, § 5.) The commissioner was not authorized to allow the writ in term time.
Motion granted.
Cases cited
- Bennett v. Hartford Fire Insurance 19 Wend. 46 p. 454