Brewer a. Tucker.

for the sum of $1094.79, with interest. That said note was received by said plaintiff's in the regular course of business, before maturity, and for a valuable consideration.

That, as deponent is informed and believes, said defendant is about to leave this State in a very short time, and take with him his family, and that he is going to Europe.

That, as deponent is informed and believes, said defendant has packed up a large amount of silver-ware, and other valuables, which said defendant is about to take away with him out of this State, and which are the property of said defendant.

That, as deponent is informed and believes, said defendant is making arrangements to convert other portions of his property into cash, with the intention, as deponent verily believes, of removing the same from this State.

That the said defendant has repeatedly said that he did not intend to pay one cent for the notes so given by him to this deponent, for the furniture sold as aforesaid, as deponent is informed and believes; and deponent verily believes that said defendant's intention in removing and disposing of his property as aforesaid is to defraud his creditors.

[Jurat.]

[Signature.]

The defendant moved to set aside the attachment under circumstances and upon papers which are sufficiently stated in the opinion.

J. F. Harrison, for the motion.

F. R. Dykers, in opposition.

HOFFMAN, J.-The action is to recover the amount of a promissory note made by the defendant.

I. The affidavit on which the attachment was obtained is insufficient. Not a fact is stated which could justify the process, except upon information and belief. The sources of the information-the persons from whom it was obtained-are not named, much less is any affidavit furnished made by any such person. (St. Amant a. De Beixcedon, 3 Sandf., 703; Furman a. Walter, 13 How. Pr., 348; Blason a. Bruno, 21 Zb., 112.)

II. I consider the rule to be settled, that it is only when a motion to discharge an attachment is made on affidavits on the

Brewer a. Tucker.

part of the defendant, that the plaintiff can support his case by additional affidavits. (Genin a. Tompkins, 12 Barb., 265; Wilson a. Britton, 6 Abbotts' Pr., 33; Mr. Justice Bonney's statement of the rule of the Supreme Court in this district in the case of Dickenson a. Benham, 10 Пb., 390, and 19 How. Pr., 410; Gen. T., Dickenson a. Benham, 12 Abbotts' Pr., 138; S. C., 20 How. Pr., 343; N. Y. Superior Ct., Sp. T., Granger a. Schwartz, 11 N. Y. Leg. Obs., 346.)

The last clause of section 241 of the Code was adopted in April, 1857, and provides, "that, in all cases, the defendant may move to discharge the attachment as in the case of other provisional remedies." He then moves, not upon giving security, but upon the law and merits of the case.

The language appears to indicate not merely that he may move, as in the case of an arrest, for example, but also that he is to move under similar rules and provisions. The rule is quite clear, that in cases of arrest or injunction, affidavits to support the plaintiff's case are inadmissible where the defendant moves on the original papers merely.

But in the case of Dickenson a. Benham (20 How. Pr., 343), it was ruled at general term that additional affidavits are admissible, to show facts occurring since the original application was made; and an affidavit was there allowed to be read, to show that a general assignment of all his property had been made by the defendant.

III. The third and more difficult question relates to the defendant's right to make the motion. In the affidavit on which the order to show cause was granted, it was sworn to by the defendant, that previous to the granting of such attachment this defendant had executed an assignment of all his property in trust, for the benefit of his creditors, to J. P. Sullivan, that said attachment has been levied upon property so assigned by this defendant to said Sullivan, and now in his possession, and the said assignee is embarrassed in the disposition of the said property by the claim of the sheriff under said attachment, and the defendant is desirous of a speedy hearing of a motion to discharge such attachment.

The case of Dickenson a. Benham (12 Abbotts' Pr., 138; S. C., 20 How. Pr., 343), before referred to, is an express decision, at general term, that the fact of the defendant having made a gen

Brewer a. Tucker.

eral assignment for the benefit of creditors after the attachment had issued, does not prevent his moving to discharge it. The case of Furman a. Walter (13 How. Pr., 348) is cited, as deciding that only a party who is some way injured by the process can move to discharge it, and it is held that an assignor for creditors has such a reversionary interest, if there should be a surplus, and such an interest on the appropriation as to justify his motion.

In Furman a. Walter, the transfer was an absolute and unconditional sale of a stock of goods.

In the present case, the assignment was made before the attachment, but no solid distinction exists on this ground. The residuary interest is as great in the one case as in the other.

It may be urged with force, that such an assignment operates to transfer the right of property, the possession, the exclusive dominion and control of property, and that only a remote conditional possibility of interest remains in the assignor; that if the property belonging to the assignee is illegally interfered with, his mode of redress is open and available, and that to allow one who could not take possession, or exercise the least control, to interfere and remove an obstruction or apparent lien upon the property, seems anomalous. I do not feel at liberty, at special term, to disregard so express an authority from so high

a source.

There remains one point to be noticed which was but slightly dwelt upon on the argument-viz., whether the affidavit of the defendant, on which the order to show cause was granted, is not sufficient to let in the further affidavits proffered by the plaintiff. But this affidavit was proffered solely as a ground for a short order to show cause, and that order specifies "the warrant of attachment, the affidavit of Benjamin Newhouse, and all the papers and proceedings in the action," as the papers on which the motion will be made. I consider that the defendant could not have used this affidavit to obtain the order, had it been in his favor, under such a specification. The last clause of the affidavit is, "said motion to be based upon the proceedings in said action, and upon the affidavit on which the same was granted." A copy of this affidavit was directed to be served with the order to show cause.

The defendant could not, against an objection, have used the affidavit in his favor. But the plaintiff could have used it as

Frink a. Morrison.

an admission, but not as an affidavit relied on, or available for the defendant on the motion, and hence it is not a ground for admitting his own further affidavit.

I think the attachment must be discharged without costs.
Ordered accordingly.

FRINK a. MORRISON.

Supreme Court, First District; Special Term, July, 1861.

SCIRE FACIAS.-RIGHTS OF MORTGAGEES AS TO PRIOR LIENS.— EXECUTION AFTER DEATH OF JUDGMENT-DEBTOR.

A mere mortgagee cannot move to set aside an execution against the land mortgaged, though such execution was irregularly issued after the death of the judgment-debtor, and without proceedings in the nature of scire facias.

A judgment should not be set aside, on motion of one having a subsequent lien, upon the ground that it has been satisfied, if the evidence is conflicting. The lienor must resort to an action for the purpose.

It seems, that chapter 295 of the Laws of 1850—giving proceedings before the surrogate-does not supersede the necessity of proceedings in the nature of a scire facias, before an execution can be issued after the death of the judgment-debtor.

Motion to set aside a judgment and execution.

The applicant, Thomas Holyoake, moved upon several affidavits. His own set forth that the defendant and judgmentdebtor, Morrison, died in March, 1860; that in June, 1858, Morrison applied to him for a loan on a mortgage of a house and grounds in Brooklyn, and offered to employ a lawyer to search the title. That Morrison afterwards informed him that he had employed Edward P. Clark to make such search, and that Clark had satisfied himself that there were no incumbrances on the premises. That thereupon deponent lent Morrison $6,500 on a bond and mortgage of the premises. That the principal of the bond, and interest from June 15th, 1859, remained unpaid, and the mortgage had been foreclosed. That deponent had recently discovered four judgments recorded against Mor

Frink a. Morrison.

rison, having a prior lien on the premises, of which, however, all were satisfied without dispute (though not of record), except the one in this action, which was for $7,599.41, docketed April 26th, 1858. That this judgment was docketed in the name of Fink instead of Frink. That it was obtained by means of a complaint signed by Edward P. Clark, as attorney for the plaintiff, and an offer to compromise under section 385 of the Code, signed by Guernsey Sackett (a lawyer employed by Clark, and in his office), as attorney for the defendant. That an execution thereon remained in the hands of the late sheriff of Kings county for two years, without any effort being made to collect the money. That Clark had applied to the surrogate of Kings county, since Morrison's death, for leave to issue execution on the judgment: that deponent appeared to oppose, but was not allowed to do so. That he believed that the judgment had been fully satisfied in fact.

The affidavit of Henry Oldfield stated that he was Morrison's book-keeper from 1855 until his death. That he made up the account between Morrison and Frink on March 25th, 1858, upon which this judgment was taken, and that by mistake a sum of $315 was not credited to Morrison. That after this account was made up, one Sly paid to Frink $5,000, which was repaid by Morrison; and Morrison paid Frink further about $10,000 on general account, besides a still larger amount specifically applied to particular accounts. That the course of business between the parties was such, that Morrison was always the debtor in the spring, and Frink always his debtor in the fall. That shortly before Morrison died, he sent deponent to his lawyer, Edward P. Clark, to obtain a satisfaction-piece on the judgment in this action that Clark obtained such satisfaction-piece from Frink, and deponent saw it in Clark's possession, but he refused to give it up to Morrison.

The affidavit of Thomas G. Shearman stated that he had lent Frink $300 on February 15th, 1858, and that Morrison repaid the sum to him on February 26th, 1858. This was part of the amount omitted by mistake from the account stated.

It appeared that the mortgaged premises were about to be sold on the plaintiff's execution.

The affidavits produced by Edward P. Clark, who resisted the motion, tended to show that these payments were applied

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