Comfort v. Gillespie — 13 Wend. 404

Majority

p. 404

Comfort vs. Gillespie and others.

ALBANY,

Jan. 1835.

Headnote

In a proceeding by attachment, under the act to abolish imprisonment, &c. a justice cannot render judgment for a demand exceeding $50.

The affidavit, on which the application is made for an attachment, must state that the acts charged upon the defendant were done with iheinient to defraud creditors, and the facts and circumstances relied on must be set forth in the affidavit; they cannot be supplied by a verbal statement.

Certiorari (o a justice of the peace. A judgment was rendered, by a justice of the peace of Sullivan county, in favor of Gillespie and others, administrators, &c. of S. J. Barkley, deceased, against Comfort, for $60.,”, besides $2,,™ costs. By the return to the certiorari sued out by the defendant, it ab-pears that the administrators made application in writing to the justice for process by attachment, and Gillespie, one of the plaintiffs, made an affidavit that, the defendant was indebted to the plaintiffs in the sum of $60,¿i, over and above all discounts, and that he believed that Comfort was about putting his property out of his hands. The justice certified, that in addition to such affidavit, Gillespie stated verbally, while under examination at the time, certain circumstances which induced him to believe that comfort intended

p. 405

to put his property out of his hands, to defraud his creditors, such as, &e.; that such proof being satisfactory to him, he issued an attachment against the goods and chattels of Comfort. He then set forth the return of the attachment, the proof of indebtedness exhibited before him, and that he rendered judgment for the sums above stated. He also returned that, at the time of the application for the attachment, a bond, in the penal sum of $200, was entered into by Gillespie and another person as his surety, conditioned to pay all damages, &c. to Comfort, in case, (fee ; in which bond the attachment was recited to have issued at the suit of Gillespie alone, instead of at the suit of Gillespie and others, administrators, &c. of Barkley.

A. Dimmick, for plaintiff in error.

A. C. Niven, for defendant in error.

By the Court,

The attachment in this case appears to have been issued under the 34th section of the “ act to abolish imprisonment for debt and to punish f; audulent debtors.” Statutes, session of 1831, p. 404. And it is manifest that the justice exceeded his jurisdiction, as that act fixes fifty dollars as the extent of the demands for which justices may issue attachments. Besides, the bond was defective in not truly setting forth the suit in which the attachment issued, and the affidavit was wholly insufficient in omitting to state that the defendant was about to dispose of his property with the intent to defraud his creditors, and also in omitting to state the facts and circumstances upon which the applicant relied in support of his application. These omissions, it seems, were intended to be supplied by a verbal statement of the applicant, which the statute does not authorize.

Judgment reversed.