In re M'Kinley — 1 Johns. Cas. 137

Majority

p. 165

In the matter of M’Kinley and others, absent debtors.^[1]

Headnote

Where an attachment had been'obtained by the endorsee of a bill of exchange against the drawers, as absent debtors, and the endorser afterwards paid the amount, this court reversed the order of a judge for a supersedeas, and allowed the attachment to proceed for the benefit of the endorser or surety who paid the money.

Monro, endorsee, of a bill of exchange drawn by M’Kinley & Co., sued out an attachment against them as *absent debtors, under the act “ giving relief against [*138] absent and absconding debtors,” passed the 4th April, 1786, and a vessel belonging to them was seized under the attachment. The endorser of the bill afterwards paid the amount to the endorsee, but it was agreed between them, that the proceedings should continue on the attachment for the benefit of the endorser, for whom the endorsee, at whose instance the attachment issued, should be a trustee. M’Kinley & Co. afterwards applied to the recorder of the city of New York, for a supersedeas, by whom it was allowed. An appeal was made from that order to this court.

Although a payment may be equivalent to giving the security required by the 23d section of the act, in order to obtain a. supersedeas, as was insisted on in the argument ; yet it must be a payment by the principal himself, and not by his surety, or one collaterally responsible to the creditor. The 23d section expressly provides, that the security shall be given for the benefit of all the creditors. As the endorser,, therefore, who paid the money, must be considered as a creditor, he has a right to avail himself of this attachment, and Munro may be considered as a trustee for his benefit. Besides, if the person who has sued out the attachment has been paid his debt, and the absent debtors wish to avail themselves of this payment, they must resort' to their plea in a regular suit.

Let the order be reversed.