Gordon a. Gaffey.

the said barn, shed, corncrib, and the contents thereof, being of the value of $1100; that said buildings were set on fire by defendant, and thereby said buildings and their contents destroyed, and that the defendant wrongfully and designedly destroyed the same; that in consequence thereof plaintiff has suffered additional damage to the amount of $100, in the inconvenience, loss, and expense of being deprived of their use, and in gathering and storing the produce of his farm. The complaint claims damages to the amount of $1200. Upon the summons and complaint, and an affidavit stating substantially these facts, and further stating facts tending to show that the defendant has absconded or is concealed, the plaintiff obtained from the county judge of Schoharie county a warrant of attachment against the property of the defendant, which the defendant now moves to set aside, upon the ground that the attachment is unauthorized by law.

I am of opinion that the motion should be granted, for the following reasons:

1. Section 277 of the Code authorizes an attachment "in an action for the recovery of money." This language must receive a reasonable construction in view of the probable intent of the Legislature, and former statutes regulating attachments against property. I think it refers to cases where a sum of money is specified in the summons, as the sum for which the plaintiff will take judgment, if the defendant fail to answer the complaint. (Code, § 129.)

2. The attachments authorized by the Revised Statutes were limited to cases where the action was upon contract, and where the relation of debtor and creditor existed. Although the relief is extended under the Code, I see no reason to believe that the remedy was intended to embrace torts or wrongs. Section 227 speaks of an assignment, or disposition of property with intent to defraud creditors, as one of the cases authorizing an attachment. Section 229 requires the amount of the claim to be specified in the affidavit. Section 231 provides that the attachment shall require the sheriff to attach so much of the property as shall be sufficient to satisfy the plaintiff's demand.

3. If the plaintiff is right in his construction of the statute, then a warrant of attachment may be issued in all cases of tres

Wilson a. Duncan.

pass, trover, slander, libel, assault and battery, and kindred actions.

This would be an entirely new construction of the phrase, an action "for the recovery of money," and was not, I think, contemplated by the Legislature. (See The People a. Bennett, 6 Abbotts' Pr., 343; Tuttle a. Smith, Ib., 329; S. C., 14 How. Pr., 395; West a. Brewster, 1 Duer, 647; Hyde Park a. Teller, 8 How. Pr., 504; Field a. Morse, 7 Ib., 12; Voorhies a. Scofield, Ib., 51.)

4. In regard to the case of Ward a. Bigg (18 Barb., 139), it is sufficient to say it does not cover the case. It was both an action upon contract, and the summons was for the recovery of money. In regard to the case of Hernstein a. Matthewsen (5 How. Pr., 196), so far as it discusses the question involved in this case, I think it was not well decided.

Without further enlarging upon the considerations which favor the conclusion, that the present is not one of the cases in which the Legislature intended an attachment to issue, I am of opinion that the warrant of attachment should be set aside, with ten dollars costs.

WILSON a. DUNCAN.

New York Superior Court; General Term, July, 1860.

ATTACHMENT.-INTERPLEADER.-MOTION TO SUBSTITUTE ADVERSE CLAIMANT AS DEFENDANT.-APPEAL.

Notice of an attachment against all defendant's property, is insufficient under section 235 of the Code.

Of the grounds on which an order of interpleader may be granted under the Code.

An order under section 122 of the Code, substituting an adverse claimant as a defendant, is appealable.

Appeal from an order made on a motion by defendants, to substitute an adverse claimant of the fund in suit as defendant.

Wilson a. Duncan.

The decision of the motion is reported 8 Ante, 354.

BY THE COURT.-ROBERTSON, J.-This action is brought, as appears by the complaint therein, to recover a balance of $53,000 deposited with the defendants as a loan, on the 30th day of June, 1858, by the firm of L. O. Wilson & Co., and assigned on that day by Wilson & Co. to the present plaintiffs, of which notice was given to the defendants on the 1st day of July, 1858.

On the 3d day of July, 1858, the defendants received a notice from the members of the firm of J. W. Paige & Co., stating the commencement of an action by them in the Supreme Court of this State against the members of the firm of L. O. Wilson & Co., in which they claimed an equitable lien upon all the effects of that firm, by reason of a special agreement made in October previous,-stated the issuing of an injunction in that action restraining the defendants therein from making any disposition of their property owned in October previous, or its proceeds, and still in force,-mentioned an assignment by such defendants, in defiance of such injunction to the present plaintiffs, and insisted that Paige & Co. would claim that any assignment was subordinate to their claim, and that they had a lien upon the funds in the hands of the present defendants, amounting to $49,000. Such notice did not set forth the terms of such special agreement, or otherwise specify the grounds of such equitable lien, or any facts to sustain it, nor did it claim that the assignment to the present plaintiff was void.

On the 3d day of August, 1858, the present defendants received from the sheriff of the city and county of New York, copies of two warrants of attachment, commanding him to attach and safely keep so much of the property of Lewis O. Wilson as should satisfy the demands of J. W. Paige and others, plaintiffs in the action in which such attachments were issued, with notices that they were such copies, and that "all the property, debts, and credits of L. O. Wilson," then in their possession or under their control, would be liable to such warrants, and that they were required to deliver all such property to the sheriff, with a certificate thereof.

The order from which the appeal is now taken, was made upon an application by the defendant under the Code (§ 122) to

Wilson a. Duncan.

substitute the members of the firm of J. W. Paige & Co., and the sheriff, as defendants in their place, and to be discharged from all liability, on depositing with the New York Life Insurance and Trust Company the sum claimed.

The application was founded upon an affidavit of one of the defendants; this affidavit alleges the receipt of the three notices before mentioned, and that the members of the firm of J. W. Paige & Co., and the sheriff, claim by the virtue of the lien. mentioned in the notice of the former, and the attachment. It also alleges, that both claim and insist that the assignment by L. O. Wilson & Co. to the plaintiffs is void as against J. W. Paige & Co., as creditors of the former, for reasons appearing on its face, and also on the ground that the same was executed in fraud of their rights, arising from facts stated in their notice, and with intent to hinder, delay, and defraud the creditors of L. O. Wilson & Co.; but no facts are alleged to have been stated, or to exist to support such charge. Such affidavit further alleges that the present plaintiffs have been made defendants in the first action brought by J. W. Paige & Co., by a supplemental complaint, and that a portion of the relief sought therein is, to set aside the assignment to the plaintiffs as fraudulent and void.

In the original complaint in the action in the Supreme Court, by Paige & Co., against L. O. Wilson & Co., they demand judg ment, that the property owned by them be applied to the payment of the debts owing by them in October previous, and that it should be divided ratably among their creditors.

The ground stated for such relief, was the purchase by Wilson & Co. of Paige & Co., of $50,000 worth of goods; the embarrassment of the former in October, 1857; a request to them by the plaintiffs therein, and others, to extend their credit, which was complied with, such compliance being obtained by a representation by such defendants that such embarrassment was temporary, that they were solvent and able to pay all their creditors, and a promise by them to pay the plaintiffs in full, or as much as any other creditors; such complaint further alleged that other creditors had been paid in full. Such complaint was filed on behalf of the plaintiffs, and other creditors of Wilson & Co., who should elect to come in and contribute towards the expense of the action.

Wilson a. Duncan.

The supplemental complaint in this action was filed against the original defendants in such action and the present plaintiffs, as parties defendants therein, and judgment is thereby demanded; and that the assignment to the present plaintiffs should be set aside, the assigned property delivered to a receiver, and distributed among the creditors of L. O. Wilson & Co., and the defendants therein enjoined from disposing of any of the assigned property; the grounds for such relief are stated therein to be the assignment after notice of the injunction of the present plaintiffs, the indebtedness of L. O. Wilson & Co., in October previous, amounting to three millions of dollars, their payment of two millions of such debts, at the sacrifice of over half a million of dollars, in the loss on a sale of goods to raise such sum, and a breach of the condition of the extension, that all the creditors of L. O. Wilson & Co., would join in it. Nothing appears in such complaint, or in any paper used on the argument, as to the time of the service of the injunction.

The notices of the attachment by the sheriff did not create any claim for the debt demanded in the suit, as they did not operate as a levy or seizure by him, and he can only sue to recover debts seized or attached by him. (Code, § 237, subd. 4.)

The attachment is to be executed by leaving a certified copy of the warrant with the debtor, with a notice showing the property levied on (§ 235), and he is required to return an inventory, and keep the property seized by him, to answer any judgment. ($232.)

The warrant of attachment only authorizes him to attach and safely keep so much of the defendant's property, as may be sufficient to satisfy the plaintiff's demands, with costs and expenses (§ 231), his right is therefore not unlimited, to seize and attach all the defendant's property. The notices did not therefore comply with the statute, they did not show the property levied on, they did not describe it any way, to whom it was due, when and for what amount.

In Orser a. Grossman (4 E. D. Smith, 443; S. C., 11 How. Pr., 520), it was strongly intimated that the notice of an attachment against all the property would not hold any, and it was expressly decided in Kuhlman a. Orser (5 Duer, 242), in this court, that it would not. The right to a discovery of the