In re of M'Kinley & Co.

New York Supreme Court

In re of M'Kinley & Co.

1 Cole. & Cai. Cas. 82, 1 Cole. Cas. 78

DecidedJuly 15, 1799

StatusPublished

This text of 1 Cole. & Cai. Cas. 82 (In re of M'Kinley & Co.) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In re of M'Kinley & Co., 1 Cole. & Cai. Cas. 82, 1 Cole. Cas. 78 (N.Y. Super. Ct. 1799).

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Opinion

Per Curiam.

The 22d section of the act provides, 66 That if any person, against whose estate or effects £< such warrant of attachment shall be issued, shall at il any time before trustees are appointed, apply to the 6£ judge who shall have issued such warrant, and groe £e such security as such judge shall direct and approve, ei to the person or persons at whose instance such ££ warrant issued, to appear and plead to any suit or ££ action to be brought w'ithin six months thereafter, u &c. and to pay all such sums as may be adjudged u in such suit or action, then such judge shall issue a ££ supersedeas.” And the 23d section provides, £< That in all cases where, upon any such attachment 66 or attachments, any ship or vessel, or any part there- ££ of, shall be seized or attached, it shall be lawful for “ the judge who shall have issued such warrant or £< warrants to cause such ship or vessel, or part there- “ of, so seized or attached, to be valued by indiffer- “ ent persons; and if any person will give security to st be approved of by such judge, to the people of the u state of New-York, for the benefit of -the creditors [84]*84“ of such debtor, to pay the amount of such valúa™ “ tian to the trustees to be in such case appointed* “ then such, judge shall cause such ship or vessel to <c be disqhárged from such attachment.”

Although a payment may be equivalent to giving, the security required by the 22d section of the act, as has been insisted in the argument, yet, that certainly must be a payment by the principal debtor, and not by his surety, or one who is collaterally responsible ; the applicants therefore do not come within that section. The next section provides, expressly, that the security shall be given for the benefit of all the creditors, and therefore, as the indorsor here who paid the money must be considered as a creditor, he has a right to avail himself of this attachment, and Munm may be considered a trustee for his benefit.

If the prosecutor is paid, and the applicants, would avail themselves of it, they must resort to their plea.

Let the order be reversed,

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Per Curiam.

The 22d section of the act provides, 66 That if any person, against whose estate or effects £< such warrant of attachment shall be issued, shall at il any time before trustees are appointed, apply to the 6£ judge who shall have issued such warrant, and groe £e such security as such judge shall direct and approve, ei to the person or persons at whose instance such ££ warrant issued, to appear and plead to any suit or ££ action to be brought w'ithin six months thereafter, u &c. and to pay all such sums as may be adjudged u in such suit or action, then such judge shall issue a ££ supersedeas.” And the 23d section provides, £< That in all cases where, upon any such attachment 66 or attachments, any ship or vessel, or any part there- ££ of, shall be seized or attached, it shall be lawful for “ the judge who shall have issued such warrant or £< warrants to cause such ship or vessel, or part there- “ of, so seized or attached, to be valued by indiffer- “ ent persons; and if any person will give security to st be approved of by such judge, to the people of the u state of New-York, for the benefit of -the creditors [84]*84“ of such debtor, to pay the amount of such valúa™ “ tian to the trustees to be in such case appointed* “ then such, judge shall cause such ship or vessel to <c be disqhárged from such attachment.”

Although a payment may be equivalent to giving, the security required by the 22d section of the act, as has been insisted in the argument, yet, that certainly must be a payment by the principal debtor, and not by his surety, or one who is collaterally responsible ; the applicants therefore do not come within that section. The next section provides, expressly, that the security shall be given for the benefit of all the creditors, and therefore, as the indorsor here who paid the money must be considered as a creditor, he has a right to avail himself of this attachment, and Munm may be considered a trustee for his benefit.

If the prosecutor is paid, and the applicants, would avail themselves of it, they must resort to their plea.

Let the order be reversed,

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Bluebook (online)

1 Cole. & Cai. Cas. 82, 1 Cole. Cas. 78, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-of-mkinley-co-nysupct-1799.