Kamena agt. Warner and Thompson.

SUPERIOR COURT.

JOHN KAMENA agt. JOHN J. WARNER and WILLIAM
THOMPSON.

Where an attachment is issued out of a justice's court, the statute prescribes that the claimant of the goods attached may execute a bond in a penalty, double the value of the property attached. But it also contemplates that the goods attached shall be fully sufficient to disharge the debt, if judgment is recovered upon it, and it presumes that nothing more shall be attached. When, therefore, a, bond is given or offered by the claimant of the goods, in double the amount of the demand, it is sufficient, although there may have been property attached to a much larger amount than double the value of the debt.

New-York Special Term, October, 1857.

MR. SHEHAN, for defendant.
MR. JENNISS, for plaintiff.

DEMURRER to complaint by defendant Warner.

Attachment out of justice's court to recover a debt of $421; the goods attached are alleged in the complaint to be worth $2,300. The writ was against Wolfe Kamena; John Kamena claimed them, and tendered a bond approved by the justice of the court, who issued the attachment, in the sum of $1,000, with sureties.

The bond was refused, and the goods were removed. The action is by the claimant for the value of the goods and damages.

On demurrer,

HOFFMAN, Justice. The 34th section (formerly 33d) of the statute provides, that "if any person claims any goods and chattels attached by a constable, he may execute a bond, to be approved of by the constable or the justice who issued the attachment, in a penalty double the value of the property at

Kamena agt. Warner and Thompson.

tached, conditioned that in a suit to be brought on such bond within three months, such claimant will establish that he was the owner of the goods seized at the time of such seizure, and in case of his failure to do so, that he will pay the value of the goods so claimed, with interest."

And by section 35, "upon such bond being executed and delivered to the constable, he shall deliver up the property seized by him, to the obligor in such bond."

It is plain that the bond in question was not a literal compliance with the statute; as the property is stated in the complaint to have been worth $2,300. But the counsel well argues, that a construction which would permit a constable in his caprice, to seize goods worth $10,000 for a demand of one hundred, and drive the claimant to give security for that full amount, or part with possession, would work needless and great injustice. I am satisified it is not the necessary and only construction which the provision will bear.

Under the 31st section, the amount of the debt is to be stated, and the constable is to attach so much of the goods. and chattels of the debtor as will be sufficient to satisfy such debt.

It is true that the statute contemplates that the case may well occur of more goods being taken, and properly taken, than are indispensable for this purpose. Therefore, under the 30th section, the plaintiff in the action gives bond to account for any excess beyond the judgment which he shall recover; and by the 38th section, where an action has been brought against the claimant, upon his bond given under the 34th section, if the amount recovered exceeds the amount of the judgment rendered for the plaintiff in the attachment suit, the plaintiff shall refund the excess.

In short, the principle of the act is, to give security by virtue of an attachment upon goods of the full value of the claim of the plaintiff.

The 34th section then contemplates that the goods attached shall be fully sufficient to discharge the debt, if judgment is recovered upon it; and the act presumes that nothing more

In the matter of Henry Dubois and others.

shall be attached. When a bond is given for double the amount of the demand, it amply meets what the plaintiff can possibly obtain, and it is double the value of the property attached, because it was intended that no more should be attached than would fully secure the party.

I think the demurrer is not well taken, and judgment must be had for the plaintiff upon it, with costs.

SUPREME COURT.

In the Matter of the application of HENRY DUBOIS and others, trustees, &c., for the dissolution of the Westchester Iron Company.

On petition for the dissolution of an incorporated company, the statute (2 R. S. 467) must be fully complied with in all its particulars.

Wherein the application in this case was held defective, stated.

GEO. WHITE, for the petitioners.

BIRDSEYE, Justice. The application does not conform to the statute (2 R. S. 467, § 59) in the following particulars. It does not contain any statement of the books, vouchers and securities relating to the estate of the corporation. (Sub. 1.) It contains no statement of the incumbrances on the property of the corporation. (Sub. 3.) It does not state the nature of the debt or demand due the several creditors, and the true cause and consideration of such indebtedness, in each case. (Sub. 4.)

I think it should also be stated that the stock not stated to be issued to the stockholders named, is still owned by, or in the possession of the corporation; or at least, that it has not been issued.

I am also of opinion, that the inventory of the estate is not such as the statute intends. The property ought to be iden tified: to be so fully described as, if it be land, by metes and

Treadwell and others agt. Lawlor.

bounds, or by references to conveyances, or otherwise, that the receiver may be enabled to take possession of the property. Such an inventory, and a full statement of the books, vouchers and securities relating to the property, will be required in order to put it within the power of the receiver to be certain that he has obtained all the property, and to bring such actions or take such other steps as may be necessary to pay the liabil ities of the company.

As the principal office for managing the affairs and business of the company is, by the articles of association, declared to be in the city and county of New-York, (though several other places in different counties are named, where the operations of the company are to be carried on,) the notice of the order should be published, and the hearing before the referee should be had, in New-York.

The petitioners may withdraw their application for the purpose of conforming it in the particulars above stated to the

statute.

SUPREME COURT

JOHN P. TREADWELL and others agt. JOHN M. LAWLOR.

A defendant is liable to attachment under the Code, where he has assigned, disposed of or secreted his (the defendant's) property, or any part thereof, or is about to do so. (§ 129.)

This means, any property in the defendant's possession, and to which he claims title, although his title may be imperfect, or clearly bad. The design of the defendant is as manifest in concealing embezzled property, as in concealing that which is actually his.

The court acquires jurisdiction of an action from the time the summons is served or any provisional remedy is allowed. (Code, § 139.)

The issuing of summons is not necessary to the validity of the attachment.

By the court-MITCHELL, Justice. The defendant moved to

Treadwell and others agt. Lawlor.

set aside the attachment against him, without denying any of the charges made against him. One of them is, that he had stolen, secreted or embezzled money of the plaintiffs, to the amount of $5,000 and upwards; that he said he had deposited part of the proceeds in the name of a little sister, which before he had said was in his mother's house, and he acknowledged that he did this to prevent suspicion against himself, and to prevent the property being taken from him, and to conceal it.

The Code as amended (§ 229) allows an attachment against a defendant who has assigned, disposed of or secreted, or is about to assign, dispose of or secrete any of his property, with intent to defraud his creditors. The declarations of the defendant clearly show that he had disposed of and secreted this property with such intent. The Code speaks of the secreting of the defendant's property. By that was meant any property in his possession, and to which he claimed title, although his title was imperfect or clearly bad. The injury to the creditor, and the intent to defraud, are as clearly shown in that case, as if the defendant had a perfect title to the property. The attachment lies, if the defendant has, or is about to secrete "any" single piece of his property, and extends to all his property of every kind, because the single act shows a readiness and an intent to extend the offence as far as may be necessary, to promote his fraudulent designs. This design is as manifest in concealing embezzled property, as in concealing that which is lawfully his.

It has been repeatedly held that the attachment is the commencement of process, although no summons be served; the issuing of a summons alone, is not the commencement of action, and would not aid in giving jurisdiction to the court, until it is served; its issuing is not necessary to the validity of the attachment. This, also, has been repeatedly held in this court. The court acquires jurisdiction from the time the summons is served, or any provisional remedy is allowed. (Code, § 139.) The order appealed from, denying the motion to set aside the attachment, is affirmed with costs.