Van Etten v. Hurst — 6 Hill & Den. 311

Majority

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E. Van Etten vs. Hurst and Cushing.

Headnote

In general, a justice’s attachment authorizing the seizure of goods, if regular on its face, is sufficient to protect the officer who executes it, without showing the preliminary proceedings. Per Bronson, J.

But where the attachment is used for the purpose of avoiding a sale by the debtor as being fraudulent in respect to creditors, the officer must show that the justice had jurisdiction.

Where it is necessary in a plea of justification under an attachment to show jurisdiction, the facts on which jurisdiction depends must be set forth. General averments that the party complied with the statute, that the proceedings were according to its requirements &c., will not answer.

An attachment against a non-resident of the county, under the 33d section of the act to abolish imprisonment for debt, may issue without any affidavit Per Bronson, J.

In trespass de bonis, a plea that- the goods were the property of one S., a third person, and that the defendants took them by virtue of an attachment against him, gives no color for the action, and is bad as amounting to the general issue, even though it admit that the plaintiff claimed the goods, at the time when &c., under a pretended sale to him from S. Per Bronson, J.

Otherwise, if the plea also admit that the goods were taken by the defendants from the possession of the plaintiff.

In such case, if the attachment was issued under the 33d section of the act to abolish imprisonment for debt, the plea must show that the debtor was a non-resident of the county, and that the plaintiff in the attachment was his creditor. An averment that the justice issued the attachment on an affidavit of these facts, will be of no avail.

The affidavit, not being required by the statute, is extra-judicial. Per Bronson, J.

Demurrer to pleas. The declaration was in trespass for taking and carrying away certain goods, to wit, at Elbridge, in

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the county of Onondaga. The defendants severally pleaded in bar that the defendant Cushing, being a resident of said county, made application in writing to a justice of the peace of the county for an attachment against the property of one Simon Van Etten, pursuant to the statute «fee., and made affidavit that said Simon Tan Etten was indebted to him in the sum of $20 on contract, and that said Simon was a non-resident of the county; that the justice issued an attachment directed (fee., [returnable in three days,] which was delivered to the defendant Hurst, a constable &c., who, by virtue of the attachment, seized and took the goods from the possession of the plaintiff (fee., he at the said time when (fee. claiming title to the goods under color of a sale pretended to be made to him by said Simon, whereas nothing passed by virtue of the pretended sale, but the same was fraudulent and void, and the goods were at the time when &c., the property of said Simon, and not the property of the plaintiff; which is the same supposed trespass &c.—concluding with a verification. Special demurrer and joinder.

W. Porter Jun., for the plaintiff.

D. Pratt, for the defendants.

The pleas allege that the plaintiff claimed the goods under a pretended sale thereof by Simon Tan Etten to the plaintiff, which pretended sale was void, and that the goods were the. property of Simon. If there was nothing else in the pleas they would be bad. They would give no color for the action, and consequently be obnoxious to the objection of amounting to the general issue. (Brown v. Artcher, 1 Hill, 266 .) But the pleas admit that the property was taken from the possession of the plaintiff, and so plainly give color. The plaintiff’s possession was sufficient to give him an action of trespass against a stranger, although the property belonged to another. The defendants admit the plaintiff’s right to sue, unless they can justify under the process against Simon. Such

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a plea is not bad for lack of color. It does not amount to the general issue; but confesses and avoids the action.

The defendants evidently intend to attack the plaintiff’s title to the goods under the sale from Simon Tan Etten, on the ground that the sale was fraudulent and void as against creditors. True, the pleas say nothing about creditors, and it is possible that the sale was bad for some other fraud. But a special pleader is not at liberty to leave his pleading open to different constructions, and then take his choice between them. If the defendants mean that there was such a fraud on the part of the plaintiff that the title did not pass as between the parties to the sale, they should have said so. But there can be little doubt that the defendants mean to attack the sale on the ground that, although it may be good as between the parties to it, it was fraudulent and void as against creditors. To do this, they must show a judgment as well as execution; or where, as in this case, they proceed by attachment, they must show that the justice had jurisdiction, and that the process was regularly issued. And this is necessary to the justification of the officer, as well* as the creditor. (High v. Wilson, 2 Johns. 46 ; Noble v. Holmes, 5 Hill, 194 , and note (b).) In most cases, process regular upon its face will be a sufficient protection to the officer; but it is otherwise when the process is used for the purpose of avoiding a sale under the statute of 13 Eliz. There the officer must show a good foundation for the process.

Attachments against non-resident debtors under the 33d section of the non-imprisonment law, (Stat. of 1831, p. 403,) may issue without any affidavit. (Clark v. Luce, 15 Wend. 479 ; Bates v. Relyea, 23 id. 336.) What is said in the pleas about an affidavit is therefore a matter of no moment, and may be laid out of the case. The pleas are then bad because it is not stated or averred that Simon Van Etten was a non-resident of the county. Without such an averment it does not appear that the justice had any jurisdiction to issue the attachment. Instead of stating that Cushing made affidavit of the non-residence of the debtor, the pleas should have alleged that in point of fact he was a non-resident. As the statute does not require an affidavit,

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1 do not see how any benefit can be claimed from the fact that one was made. Indeed, it seems to be an extra-judicial oath, which can do no good in any point of view.

The general allegations in the pleas that Cushing applied for the process pursuant to the statute, that he complied with the requirements of the statute, that the justice had jurisdiction, and issued the process in pursuance of the statute, and the like, are of no avail. Where it is necessary to show jurisdiction, the party must allege the existence of the facts on which jurisdiction depends. (Sackett v. Andross, 5 Hill, 327 .)

The pleas are also bad because it is not averred that Cushing was a creditor of Simon Van Etten. No one but a creditor had a right to attack the sale to the plaintiff. (Damon v. Bryant, 2 Pick. 411 .) The affidavit that Simon Tan Etten was indebted to Cushing will not aid the pleas, for the reasons already mentioned.

Judgment for the plaintiff.

Cases cited

Clark v. Luce 15 Wend. 479 N.Y. Sup. Ct. p. 313