In re M'Kinley

1 Johns. Cas. 137

• Court: New York Supreme Court
• Decided: July 15, 1799
• Status: Published

Opinion

Per Curiam.

Although a payment may be equivalent to giving the security required by the 23d section of the act, in order to obtain a. supersedeas, as was insisted on in the argument ; yet it must be a payment by the principal himself, and not by his surety, or one collaterally responsible to the creditor. The 23d section expressly provides, that the security shall be given for the benefit of all the creditors. As the endorser,, therefore, who paid the money, must be considered as a creditor, he has a right to avail himself of this attachment, and Munro may be considered as a trustee for his benefit. Besides, if the person who has sued out the attachment has been paid his debt, and the absent debtors wish to avail themselves of this payment, they must resort' to their plea in a regular suit.

Let the order be reversed.