Muller v. Leeds

19 A. 261, 52 N.J.L. 366, 23 Vroom 366, 1890 N.J. Sup. Ct. LEXIS 62

Opinion

The opinion of the court was delivered by

Dixon, J.

Upon an affidavit “ that the estate of Henry Muller is not resident in this state, and that he owes,” &c., a justice of the.peace in Atlantic county issued a writ of attachment against “ the effects, rights and credits of the estate of 'Henry Muller,” and by virtue thereof some personal property was attached. Thereupon Gustavus A. Muller, an executor of Henry Muller, deceased, appointed in the State of Pennsylvania, appeared before the justice and moved to quash •the writ. The justice denied this motion, but permitted the plaintiffs “ to amend their action by substituting in addition •the name of Gustavus A. Muller, executor of the estate of Henry Muller,” and proceeded to judgment “against the ■defendant.” The executor prosecutes this writ of certiorari to set aside the entire proceedings.

Plainly the proceedings must be quashed.

Writs of attachment can issue only against persons, natural •or artificial, and an estate is not a person. Nor did the amendment, by the substitution of the name of the executor, help 'the matter. For there was no affidavit that the executor either had absconded or was not resident in the state, and only against persons in these conditions can the writ be employed. Moreover, our statute does not purport to authorize the issuing of attachments against executors or administrators, except in the case of joint debtors. Haight v. Executors of Bergh, 3 Gr. 183.

Let the proceedings of the justice be set aside.