In re Vargas — 19 Wend. 154

Majority

p. 154

In the matter of Joseph Vargas, proceeded against as a non-resident debtor.

Headnote

Proceedings against absconding, concealed and non-resident debtors abate by the death of the attaching creditor intermediate the issuing of the attachment and the appointment of trustees.

The attaching creditor died intermediate the issuing of the attachment and the appointment of trustees. The commissioner, notwithstanding, appointed trustees. No new creditors had come in to avail themselves of the attachment. A motion was made to set aside the appointment of trustees and all subsequent proceedings, on the ground that by the death of the attaching creditor the proceedings abated.

D. D. Field, for the motion.

/. Rhoades, contra.

By the Court,

The act on this subject has made no provision for the continuation of the proceedings after the death of the attaching creditor, and they must therefore be considered to have abated by his death. Had other creditors come in and) claimed the benefit of the attachment, a different case would have been presented.

Motion granted.