Ex parte Chipman

1 Wend. 66

• Court: New York Supreme Court
• Decided: August 15, 1828
• Status: Published

Opinion

By the Court,

Woodworth, J.

The attachment must be superseded. The debtor had not departed from the state, nor was he concealed within it, with intent to defraud his creditors, or to avoid arrest, in which cases only can this process issue. His departure from his home was public, and its object notoriously known. On the merits, therefore, the motion must be granted. It is unnecessary to express an opinion as to the regularity of the proceedings, but, had it been necessary, the court probably would have directed a supersedeas on this ground. The affidavits are defective, and it may well be doubted whether an officer, entrusted with the power of issuing this summary process, ought to receive affidavits of the concealment or departure of a debtor, taken before another officer; whether he ought not personally to take the proof, and examine the witnesses himself.

Motion granted.