Hubbell & Curran v. Ames & May — 15 Wend. 372

Majority

p. 372

Hubbell & Curran vs. Ames & May.

Headnote

Proceedings against the payee of a note as an absconding or concealed debtor, may be given in evidence under the general issue, in bar of the action, as well where the suit is in the name of a subsequent holder as "when in the name of the payee.

The appointment of trustees is conclusive evidence of the regularity of the previous proceedings, and that the officer issuing the attachment had jurisdiction in the matter.

This was an action of assumpsit on a promissory note,dated 6th January, 1832, and payable 1st June, 1832, given by the defendants to John Simplot or bearer. The plaintiffs declared as the holders of the note by transfer. The defehdants pleaded the general issue, and on the trial of the cause proved that the note at the making thereof belonged to Henry Simplot, it being given and made payable to JohnSimplot as the agent of Henry Simplot, and that it was transferred by Henry Simplot to the plaintiffs on the 23d April, 1832 ; that previous to the transfer, proceedings were commenced before a commissioner against Henry Simplot as an absconding or concealed debtor, and that the first publication of the order of the commissioner, for the appearance of the debtor, took place previous to the 1st April, 1832. To prove the proceedings against Simplot, the defendants produced, l.An exemplification of the report of the commissioner, dated 4th October, 1832, filed in the clerk’s office at Utica ; 2. The order for the debtor to appear, and the affidavits of publication; and 3. The appointment of trustees, made 18th September, 1832. This evidence was objected to

p. 373

by the plaintiffs on two grounds: 1. That it was inadmissible under the general issue; and 2. That it was of no avail without production of the preliminary proofs, which they contended should be produced to enable the court to determine whether the commissioner had jurisdiction in the matter. The objection was overruled. The jury, under the charge of the judge, found a verdict for the defendants. The plaintiffs moved for a new trial.

T. E. Clark, for plaintiffs.

B. Davis Noxon, for defendants.

By the Court,

The evidence of the proceedings against Simplot, as an absconding or concealed debtor, was admissible under the general issue. Clark v. Yale, 12 Wendell, 470, and Comstock v. Hoag, 5 id. 600.

As to the proof of the preliminary proceedings: the report of the commissioner is declared by statute conclusive evidence that the proceedings stated therein were ha<l; and the appointment of trustees is also declared conclusive evidence (except in the case of reference provided for by the statute,) that the debtor therein named was a concealed, absconding or nonresident debtor, within the meaning of the act, and that the appointment and all the proceedings previous thereto were regular,. 2 R. S. 12, § 62—13, § 68. The production of the appointment of trustees, therefore, was sufficient to show that the officer had jurisdiction.

It is urged in behalf of the plaintiffs, that the statute does not prohibit the transfer of a note by a party proceeded against as an absconding or concealed debtor,.except where it is transferred in payment of or as security for an existing or antecedent debt This point was substantially decided in Clark v. Yale. The defence there was that the defendants had paid the note to the trustees, and it was held a valid payment. The principle of the defence in Comstock v. Hoag also applies here. But the statute itself leaves no doubt upon the point. The 23d $ denounces the transfer to be 11 absolutely void as against creditors the 34th § declares that every person indebted to an absconding or concealed debtor shall account

p. 374

and answer for the amount of such debt to the trustees ; the ^ declares the payment to the debtor, after the first publication, fraudulent as against the trustees; and payment to an assignee, who obtains the note after such publication, would be held equally fraudulent, The 36th § authorizes the person indebted, if prosecuted by the debtor, to give in evidence under the general issue, the fact of the attachment having been issued and the publication of the notice at the time of the commencement of the action ; and within the spirit of this section he may do the same when the suit is in the name of an assignee.

New trial denied. •