Majority
p. 359Whitney vs. J. I. & J. R. Johnson.
Headnote
The municipal court of Brooklyn has power to issue an attachment against the goods and chattels of a debtor mho is about to depart from the county, or is concealed, &c.; but has no authority to issue such process against the goods and chattels of a debtor about to remove his property from the county i with intent to defraud his creditors; or, in other words, have no jurisdiction to proceed by attachment under the act to abolish imprisonment, &c.ErRoe from the municipal court of Brooklyn. Jeromus I. Johnson, in behalf of himself and partner, J. R. Johnson, on the 4th February, 1833, made application to the municipal court of the village of Brooklyn, for an attachment against the goods and chattels of F. H. Whitney. He presented his affidavit, that Whitney was indebted to his firm in the sum of $52, over and above all discounts, for goods sold and deliver
p. 360
ed by his firm to Whitney; that he believed that Whitney was about to remove his property from the county of Kings, with intent to defraud his creditors, and that he had assigned and disposed of his property, and was about to assign and dispose of his property with a like intent, and then proceeded to state the facts and circumstances upon which his belief was founded. He also presented a bond, executed by himself and a surety, in the penal sum of $200, conditioned to pay to Whitney all damages and costs he might sustain by reason of the attachment to be issued, if no judgment should be recovered against him in the cause thus to be commenced ; and if judgment should be recovered by the Johnsons against Whitney, then to pay to Whitney all moneys which should be received from any property levied upon by the attachment, over and above the amount of the judgment, interest and costs; and the municipal court thereupon issued an attachment against the goods and chattels of Whitney, directing the constable to attach and keep the same, to satisfy such judgment as might be rendered in favor of the plaintiffs, in a plea of trespass on the case, to their damage of $52. On the return of the process, the parties appeared ; the plaintiffs declared in assumpsit for goods sold and delivered,' and the defendant put in a plea in abatement, which was overruled by the court. The defendant objected to the legality of the proceedings had against him, and withdrew ; after which the plaintiffs proved their demand, and the court rendered judgment in their favor for $52,18, besides costs. The defendant sued out a certiorari.
C. T. Cromwell, for plaintiff in error.
W. Rockwell, for defendant in error.
By the Court,
The question raised by the record in this case is, whether the municipal court of the village of Brooklyn have jurisdiction to proceed by attachment under the statute of 1831, entitled “an act to abolish imprisonment for debt and to punish fraudulent debtors.’' Laws of 1831, page 404, § 34, 35.
p. 361
The municipal court was created by the act of April 3d, 1827, entitled “ an act to reduce the law incorporating the village of Brooklyn and the several acts amendatory thereof into one act, and to amend the same.” By the 47th section, the _ , . , - . % . , ,, .. . . justices oi the said court “ are invested with all and singular the powers of justices of the peace for the county of Kings.” The law then in force, giving civil jurisdiction to justices of the peace, was the act of 1824, by which justices in every county in the state (except New-York) were authorized to issue attachments, upon proof being made according to that statute, that the person applying for the attachment had a demand not exceeding $50, due from the person against whom an attachment was requested, and that such person had departed, or was about to depart, from the county, or was concealed within the same, with intent to defraud his creditors, or to avoid being personally served with process ; and also, upon receiving such bond as is prescribed by that statute. This power was vested in the justices for the county of Kings, and became vested by the act of 1827 in the justices of the municipal court of Brooklyn; and as by the last mentioned act the jurisdiction of the court was raised to $100, that court no doubt had power to issue attachments to any amount not exceeding that sum. The revised statutes introduced some further regulations as to the issuing of attachments, but did not authorize that process except in the cases already specified. Application was required to be made in writing, and accompanied by the affidavit of the creditor or his agent, and the affidavits of two disinterested witnesses ; and it was also required that the surety in the bond should be approved in writing by the justice.
The act of 1831 authorized the issuing of an attachment in a new case, to wit, where it shall satisfactorily appear to the justice that the defendant is about to remove from the county any of Ms property with intent to defraud his creditors, or has assigned, disposed of, secreted, or is about to assign, dispose of, or secrete any of his property with intent to defraud his creditors. The power to issue an attachment in such a case was not possessed by the justices of Kings county in 1827, and of course was not vested in the municipal court by the act
p. 362
creating that court. The act of 1831 gives jurisdiction in such a case to justices of the peace alone, and not to any other court, and confines it to actions “ for the recovery of any debt or damages arising upon any contract, express or implied, or upon any judgment for fifty dollars or less.” Here are two limitations to the power to issue attachments, where the debtor had fraudulently removed or disposed of his property, or is about to do so: first, to justices of the peace by name ; and secondly, to demands for $50 or less. I know of no rule of construction which will authorize us to extend this power to the municipal court of Brooklyn, in any case; much less to a case exceeding $50.
It will not do to say that this court shall have the power because it is conferred upon the justices of Kings county ; such powers as they had in 1827 were conferred, but not such as should be granted subsequently; and as no such power has been expressly granted to the municipal court, we must hold that that court does not possess it.in such a case.
Judgment z’eversed, with single costs.