In re Faulkner — 4 Hill & Den. 30

Majority

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Matter of Faulkner, an absconding or concealed debtor.

Headnote

Where one against whom process has been instituted as an absconding or concealed debtor, brings a certiorari pursuant to 2 R. S. 602, § 67, and accompanies the same by a bond in the form prescribed by § 74, he must, within ten days after the filing of the certiorari, give notice of the names, additions &c. of the sureties in the bond ; and the creditors have then twenty days within which to except to the sureties.

If such notice be not given, or if the sureties fail to justify on being excepted to and new sureties be not substituted, the certiorari will cease to operate as a stay, and the creditors may proceed to the appointment of trustees as if no certiorari had been brought.

An ex parte justification by the sureties at the time of giving the bond, cannot be made to answer as a substitute for the aoove steps on the part of the debtor. Semble.

If the debtor, after filing the bond, omit the steps necessary to perfect it, the certiorari ceases to operate as a stay of proceedings without obtaining a supersedeas.

On the 16th of April last, an attachment was issued against Faulkner as an absconding or concealed debtor by the circuit judge of the first circuit. On the application of Faulkner, llleging that he was a resident of this state, and was not an absconding or concealed debtor, the matter was referred to the New-York court of C. P. pursuant to 2 R. S. 9, 43—50. On

the 3d of September last, the C. P. decided against the debtor, and held that the allegations in his petition were - not proved. On the 14th of September, the debtor procured the allowance of a writ of certiorari by one of the justices of this court to re

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move the decision of the court of C. P. into this court for examination, pursuant to 2 R. S. 602, art. 2. The certiorari was filed in the court of C. P. on the 17th of September, together with a bond executed by the debtor and two sureties, with such penalty and condition as is prescribed by the 74th section of that article, and on that day each of the sureties made affidavit that he was a householder &c., and worth double the penalty of the bond. The bond was approved by the recorder of New-York ) but no copy of the affidavit was served, nor was notice of the names, additions, or places of residence of the bail ever given to the attorney for the attaching creditors. The attorney for the creditors on enquiring into the matter ascertained, as he says, that the sureties were “ mere men of strawand on the 23d of September he entered an exception to the sureties, and gave notice thereof to the attorney for the debtor. After waiting more than ten days, the attorney for the creditors gave notice t on the 6th of October—the sureties not having justified—that-/ he should apply to the circuit judge for the appointment of " trustees; and on the 13th of Octoberthe. application was made, pursuant to the notice, and trustees were appointed. On the 28th of October, the circuit judge reported his proceedings upon the attachment to this court pursuant to the statute.

S. B. H. Judah, for the debtor,

now moved that the appoint ment of trustees be vacated and set aside for irregularity, and that an attachment be issued against James Smith, the attorney for the attaching creditors, for proceeding in the matter after the filing of the certiorari and bond in the C. P., which he insisted suspended all proceedings on the warrant until the final decision of this court should be made. (2 R. S. 604, § 74.)

J. Rhoades, for the attaching creditors,

insisted that the certiorari did not operate as a stay of proceedings, because no notice of the sureties was given, and because they did not justify when an exception was taken, and were “ mere men of straw.” On papers served for that purpose,

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Rhoades now moved for an order upon Mr. Judah, the attorney for the debtor, to unite with Mr. Smith, the attorney for the creditors, in drawing a check in favor of the trustees upon the Bank of New-York for certain moneys which, in the course of the proceedings, had been deposited in that bank to the joint credit of the two attorneys to await the event of. the proceédings.

Judah opposed this-motion.

By the Court,

These motions turn mainly upon the question whether the debtor has been regular in his proceedings in relation to bail upon the writ of certiorari. The statute provides that, upon filing the writ and bond, all further proceedings.upon the warrant shall be suspended until the final decision of the court of review. (2 R. S. 604, § 75.) But we must look at the 74th section for the purpose of ascertaining what bond is to be given, and how it is to be approved. That section provides, that where the writ of error or certiorari is brought by the debtor, “ it shall not be effectual unless accompanied.by a bond, with sureties, to the attaching creditors, to be approved in the same manner, in the like penalty, and with the same condition as prescribed in the case of a writ of error not intended to stay proceedings on a judgment.” The li prescribed manner” in which the bond here referred to is “ to be approved,” is pointed out by the 34th and 35th sections oi the same title. (Id. 597.) The party prosecuting the writ, within ten days after the filing thereof, is to give notice of the names, additions and places of residence of the sureties in the bond, and the other party then has twenty days to except to the sureties. Within ten days after notice of the exception, the sureties,- or new sureties in their place, must justify by affidavit, and a copy of the affidavit must be served on the attorney for the defendant in error. This is the only prescribed mode of approving the bond. In .this case the debtor wholly omitted to give notice of the names, additions &c. of the sureties; (Fleet v. Youngs, 11 Wend. 526 ;) and when the

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creditors—although they were not obliged to do so without notice—excepted to the sureties, no justification followed. The debtor failed to have the bond “ approved” in the proper man ner, and the statute declares that without such approval the writ “ shall not be effectual.” (§ 74.) There was, therefore, no stay of proceedings.

There is no necessary repugnancy between the 74th and 75th sections. On filing the writ and bond, in the proper form, the proceedings on the warrant are immediately suspended. But the debtor must take the proper steps to have the bond approved, or the writ will cease to operate as a stay, and the creditors may proceed.

It is said that the writ will not cease to operate until it has been superseded. (2 R. S. 598, § 36; Fleet v. Youngs, 11 Wend. 526 .) But this provision relates to the ordinary writ of error. When we come to a writ of error or certiorari in the case of an absconding debtor, the statute specially provides that, without the proper bond, the writ “ shall not be effectual and it cannot be necessary to have it superseded before the creditors are at liberty to proceed.

It is also said that, as the sureties made the proper affidavit at the time the bond was given, no subsequent justification was necessary. But no copy of the affidavit was ever served, and that is expressly required by the statute. And besides, when the statute declares that the creditor shall have twenty days after notice to except to the sureties, and that the sureties shall justify within ten days after notice of the exception, I am-not' prepared to admit that the provision can be satisfied by an ex <parte justification before hand. It may be that these sureties could not have justified after the exception was taken ; or, if there had been" no change in their circumstances, it is quite possible that, after learning that their sufficiency had been questioned, they would not again have made the necessary affidavit. There is much reason upon the papers for believing that they were not good bail.

I think the creditors were at liberty to proceed, and that the

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circuit judge was right in appointing trustees. Of course the motion to set aside the appointment, and for an attachment against Mr. Smith, must be denied.

As to the other motion, Mr. Judah must unite with Mr. Smith in placing the $650 deposited' to their joint credit in the Bank of New-York at the disposition of the trustees for the benefit of the creditors

Ordered accordingly.