Cottrell v. Finlayson

4 How. Pr. 242

Opinion

Parker, Justice.

'—-In this case the plaintiff might have applied for an attachment in the first instance, after making demand of the money, (3 Caines, 221; 5 John. 368 ; 4 Cowen, 76 ; 6 Cowen, 596 ; 4 Hill, 42, 565.) Instead of doing so, he commenced an action which was litigated, and after having recovered a judgment in which the costs exceed the amount of money collected, now applies to this court for a more summary remedy. I tMnk the proceeding by action was a waiver of the right to proceed by attachment, It seems to have been so regarded in Bohanan v. Peterson, 9 Wend. 503. It is not right to subject the defendant to the costs of a suit and also of the proceedings by attachment.

There is another objection to granting this motion. There has been no demand of the amount ascertained to be due by the result of the litigation, nor of the costs recovered. An attachment can never be issued without a previous demand. (Ex parte Ferguson, 6 Cowen, 596.)

Motion denied, but without costs.