Smith v. Weed

20 Wend. 184

• Court: New York Supreme Court
• Decided: October 15, 1838
• Status: Published

Opinion

By the Court, Nelson, Ch. J.

The attachment appears to have been regularly issued under the provisions of 2 R. S. 230 § 26, et seq. as amended in respect to the preliminary proof by the act of 1831, to abolish imprisonment for debt, Statutes, Sess. of 1831, p. 404, § 35, for a sum not exceeding $100, upon the ground that the defendant in that process (Joslin) had absconded from the county with the intent to defraud his creditors. The authority given to a justice by the Revised Statutes to issue an attachment, was not abridged by the 34th section of the act of 1831, but on the contrary was extended to other cases, viz. the fraudulent removal, assignment or secretion of property, limiting however, the amount in those cases to fifty dollars. The Revised Statutes are left untouched except in respect to the affidavit of he facts and circumstances on which the application is made, which by the 35th section may now be made by the plaintiff himself, instead of being made by two disinterested witnesses.

The judge was clearly right in ruling that the stone attached belonged to Joslin, the defendant in the process; that the lien was valid, and that the release thereof constituted a" good consideration for the undertaking of the defendant to pay the debt due to the plaintiff. 5 Taunt. 450. 2 East, 332. 4 Taunt. 117. 2 Saund. on Pl. & Ev. 547. Whether the agreement was intended to embrace the whole demand due, $131, or only $100, the extent of the lien, is matter of construction. The judge at the circuit took the former view of it from the language used by the witnesses, and I am inclined to think he was correct. The testimony of one of the witnesses is, that the defendant promised to pay the debt of Joslin, if the plaintiff would release the attachment ; this may fairly include the whole, as the amount of the debt must have been well known at the time.

New trial denied.