Obrázky stránek
PDF
ePub

See this subject fully considered in the previous chapters of this portion of the work, under the analogous heads of Arrest and Injunction.

In Camman v. Tompkins, 1 C. R. (N. S.) 12, and Gilbert v. Tompkins, 1 C. R. (N. S.) 16, the same principle is thus laid down: that “ The grounds of the belief of the party must be set out, so that the judge who issues the warrant may have such belief, and the court may be able to determine whether it be well grounded.”

In Morgan v. Avery, 7 Barb. S. C. R. 656, 2 C. R. 91, affirmed on appeal, 2 C. R. 121, the law as to the statements, which will suffice to establish that the defendant has departed with intent to defraud his creditors, or to avoid service of a summons, is laid down as follows. It is not necessary that such departure should have been made by the defendant secretly, as under the Revised Statutes : “If he have departed ever so openly, it will be enough, if the . required intent is made out." After stating the facts of the case, which showed that such departure, in that instance, was not secret, but was nevertheless made under circumstances of considerable embarrassment, and some suspicion, the learned judge proceeds as follows: “I repeat that no imputation of an intent to defraud his creditors necessarily follows from the facts of the case, nor is it necessary to cast any such imputation, in order to sustain the attachment.”

“If, finding himself irretrievably involved, so that his failure must soon happen, he has desired to be out of the way of his creditors at the time it should happen, although he had left all his property behind him, and although he was desiring to get into other business, whereby he might ultimately retrieve his affairs, the inference may very properly be drawn, that he departed the state with intent to avoid the service of a summons. Such, at all events, seems to me to be the highest probability in this case, and I cannot, therefore, feel myself warranted in setting aside the attachment as improvidently issued."

In the superior court, however, a more restricted view is taken as to the propriety of granting this species of remedy, and, under very similar circumstances to those reported in Morgan v. Avery, an attachment has been refused, but an order for service by publication granted, on an application for both remedies on the same affidavits.

In Camman v. Tompkins, 1 C. R. (N. S.) 12, the law on the subject of concealment of a defendant, is laid down in extenso.

The defendant, in that case, after his insolvency became manifest, had remained out of the way a few hours, until he had succeeded in completing a disposition of his property without molestation from his creditors, and then returned to his house, and delivered himself up to an officer who held a warrant to arrest him. The learned judge held that this was a sufficient concealment to bring the case within the provisions of this chapter. “It is not neces

“ sary that a summons should have been issued, and an ineffectual attempt to serve it made. It was enough, if the party intentionally so disposed of himself that one could not have been served.” “It is concealment, to avoid the service of process, no matter whether for an hour, a day, or a week; no matter whether with a view to defraud creditors, or merely to have time to make a disposition, lawful or otherwise, of his property, before his creditors got at him. It is placing himself designedly, so that his creditors cannot reach him with process; and that, it seems to me, is clearly the conceal. ment which the statute contemplates.” In Gilbert v. Tompkins, 1 C. R. (N. S.) p. 16, where the de

p fendants had, in their affidavits, stated the facts on which they applied for an attachment, but had drawn a wrong conclusion from those facts, inferring that the defendant had departed the state, whereas he had actually concealed himself within it, the attachment issued on those affidavits was sustained, as being warranted by the facts themselves, without the inference.

The affidavits and security being prepared, application should be made to a judge, or county judge, as above prescribed, for a warrant of attachment. The form of this document is prescribed by sec. 231, as follows:

§ 231. The warrant shall be directed to the sheriff of any county in which property of such defendant may be, and shall require him to attach and safely keep all the property of such defendant within his county, or so much thereof as may be sufficient to satisfy the plaintiff's demand, together with costs and expenses. The amount of which must be stated in conformity with the complaint, together with costs and expenses. Several warrants may be issued at the same time, to the sheriffs of different counties.

See Appendix for form.

In Camman v. Tompkins, 1 C. R. (N. S.) 12, it was held that the warrant is process in the progress of the cause, and must, as such, be issued in the ordinary form, and under the seal of the court. The allowance of the judge is necessary to warrant its issuing, but the usual law stationers' form, in which such attachment is treated as process running in the name of the judge, and signed by him, is wrong. An amendment was, however, allowed. These directions must therefore be strictly followed in all cases, the judge's allowance being first obtained, and the paper afterwards sealed in the clerk's office in the ordinary form. If more than one warrant is required, duplicates should be prepared, and the judge's signature and seal of the court obtained thereto.

The warrant, when obtained, must be lodged with the sheriff of the county, the affidavits on which it was issued being filed with the clerk of the court.

The duties of the sheriff thereon, are thus prescribed by sections 232 to 236, inclusive.

§ 232. The sheriff to whom such warrant of attachment is directed and delivered, shall proceed thereon in all respects, in the manner required of him by law in case of attachments against absent debtors; shall make and return an inventory, and shall keep the property seized by him, or the proceeds of such as shall have been sold, to answer any judgment which may be obtained in such action; and shall, subject to the direction of the court or judge, collect and receive into his possession all debts, credits, and effects of the defendant. The sheriff may also take such legal proceedings, either in his own name or in the name of such defendant, as may be necessary for that

purpose, and discontinue the same, at such times and on such terms as the court or judge may direct.

$ 233. If any property so seized shall be perishable, or if any part of it be claimed by any other person than such defendant, or if any part of it consist of a vessel, or of any share or interest therein, the same proceedings shall be had in all respects, as are provided by law upon attachments against absent debtors.

§ 234. The rights or shares which such defendant may have in the stock of any association, or corporation, together with the interest and profits thereon, and all other property in this state of such defendant, shall be liable to be attached and levied upon and sold to satisfy the judgment and execution.

§ 235. The execution of the attachment upon any such rights, shares, or any debts or other property incapable of manual delivery to the sheriff, shall be made by leaving a certified copy of the warrant of attachment with the president or other head of the association or corporation, or the secretary, cashier, or managing agent thereof, or with the debtor or individual holding such property, with a notice showing the property levied on.

[ocr errors]

$ 236. Whenever the sheriff shall, with a warrant of attachment, or execution against the defendant, apply to such officer, debtor, or individual, for the purpose of attaching, or levying upon such property, such officer, debtor, or individual, shall furnish him with a certificate under his hand, designating the number of rights or shares of the defendant in the stock of such association or corporation, with any dividend, or any incumbrance thereon, or the amount and description of the property held by such association, corporation, or individual, for the benefit of, or debt owing to the defendant. If such officer, debtor, or individual refuse to do so, he may be required by the court or judge to attend before him, and be examined on oath concerning the

same, and obedience to such orders may be enforced by attachment.

The statutory provisions, under the law in cases of attachment against absent debtors, will be found as above, at 2 R. S. 1 to 16 inclusive. See, also, the works on the old practice, in relation to the proceedings under these provisions, which are essentially the same as those under the Revised Statutes, with this exception, that the machinery of trustees, as thereby provided, is now swept away, and the sheriff alone acts in the matter.

Where legal proceedings may be necessary, under the provisions of sec. 232, the same may be prosecuted by the plaintiff himself, if thought advisable, under the following power, conferred by sec. 238:

$ 238. The actions herein authorized to be brought by the sheriff, may be prosecuted by the plaintiff, or under his direction, upon the delivery by him to the sheriff of an undertaking executed by two sufficient sureties, to the effect that the plaintiff will indemnify the sheriff from all damages, costs and expenses on account thereof, not exceeding two hundred and fifty dollars in any one action. Such suretics shall, in all cases, when required by the sheriff, justify, by making affidavit that each is a householder, and worth double the amount of the penalty of the bond, over and above all demands and liabilities.

The sheriff, having thus seized upon all the available property of the defendant, holds it in deposit, to abide the event of the suit, the plaintiffs lien taking precedence of any subsequent process lodged with him.

In Frost v. Willard, 9 Barb. S. C. R. 440, an attachment, issued against goods in the hands of third parties, who had a claim to property in part thereof, and a lien on the remainder for advances, was held to have been bad as against those parties, and that they were entitled to recover, to the full extent of their lien.

It is, however, competent for the defendant, at any period during the pendency of the action, to appear and apply for a discharge of the attachment, on giving security to the plaintiff. The provisions of the Code in this respect, are contained in sections 240 and 241, which run as follows:

$240. Whenever the defendant shall have appeared in such action, he may apply to the officer who issued the attachment, or to the court, for an order to discharge the same, and, if the same be granted, all the proceeds of sales and moneys collected by him, and all the property attached remaining in his hands, shall be delivered or paid by him to the defendant or his agent, and released from the attachment.

$ 241. Upon such an application, the defendant shall deliver to the court or officer an undertaking, executed by at least two sureties, resident and freeholders in this state, approved by such court or officer, to the effect that the sureties will, on demand, pay to the plaintiff, the amount of the judgment that may be recovered against the defendant in the action, not exceeding the sum specified in the undertaking, which shall be, at least, double the amount claimed by the plaintiff in his complaint.

The application for this purpose must be made on the usual notice, and a copy of the undertaking should be served with the notice or order to show cause. Where, however, the attachment has been obtained upon a false statement, it seems the court will not require the security here prescribed, on moving to discharge it.- Killian v. Washington, 2 C. R. 78. The attachment had there been obtained on the ground of non-residence, and the defendant applied to discharge it, on the ground that he was in fact a resident, under which circumstances the court ordered a reference, under subdivision 3 of section 271, to ascertain the fact, without requiring any undertaking to be given.

In Conklin v. Dutcher, 5 How. 386, 1 C. R. (N. S.) 49, it was held by the general Term of the 6th district, in direct opposition to Morgan v. Avery, that additional affidavits cannot be read on either side, on a motion to set aside an attachment. It cannot be set aside at special term, except for irregularity ab initio. The defendant has only “two modes of getting rid of it, where it has been improvidently granted : 1. By applying to the judge to vacate his own order, sec. 324. 2. By appeal to the general

« PředchozíPokračovat »