In re Bunch — 9 Wend. 473

Majority

p. 473

In the matter of H. Bunch, a non-resident debtor.

ALBANY,

Feb. 1833.

Headnote

A supersedeas to an attachment raider the absconding, concealed and absent debtor act, will be granted on shewing a settlement between the attaching creditor and the debtor, although trustees have been appointed; the rights of the trustees however will bo protected, and time will be given to other creditors to come in.

On shewing a settlement of all demands between the attacking creditor and the non-resident debtor, motion was made for a supersedeas to the warrant of attachment in this case. The motion was opposed on behalf of the trustees who had been appointed by the officer granting the warrant on the ground that there were other creditors besides the attaching creditor who were interested in the estate of the debtor, which by the act was now vested in them, and that they, the trustees, had incurred expenses in the prosecution of a certiorari in this matter.

By the Court,

Every creditor of the person proceeded against in this case is entitled to the same benefits and advantages under the proceedings which have been had as the creditor at whose instance the attachment originally issued, upon making an affidavit specifying the sum due to him, and presenting a petition stating his desire to be deemed an attaching creditor. 2 R. S. 8, &c. § 37 to 42. It being shewn that there are other creditors besides the attaching creditor, we are bound to save their rights, although it does not appear that they have as yet complied with the requirements of the statute s so also we must protect the trustees. We therefore order that a supersedeas issue, upon payment to the trustees of their commissions upon the amount due to the attaching creditor, and of all costs liabilities and expenses incurred by them, provided that no other creditor do, within three months from this day, petition to be deemed an attaching creditor under the proceedings commenced in this case.