delivered the opinion of the Court. These two cases have been considered conveniently together, there being some points of resemblance, and some of difference, between them. In both cases, subsequent attaching creditors come in, to contest the validity of the plaintiffs’ attachments, under the statute. This proceeding is now regulated by the Revised Statutes, c. 90, § 83, et seq. It provides, that any person claiming title or interest in the attached property, may be
It is very manifest, from the most superficial examination of these provisions, and a comparison with the former laws on the subject, that the whole system, in regard to the intervention of subsequent attaching creditors and other incumbrancers, to defeat an attachment, is changed, both in principle and in the form of proceeding.
Under the old system, the subsequent attaching creditor was permitted to come in and defend the suit, on a trial in the ordinary course, between the plaintiff and defendant. Difficulties and even legal absurdities seemed implied in this mode of proceeding. It either took the defence out of the hands of the party, or involved the absurdity of making two distinct defences, perhaps upon very distinct grounds. It either deprived the defendant of the benefit of many grounds of defence, which he ought to enjoy if the defence is an honest one ; or, what is quite as likely to happen, the plaintiff might be deprived of the benefit of giving in evidence the acts and admissions of the defendant, from which he may be excluded, on the suspicion that the suit and the attachment are collusive, but of
This course is now entirely changed, and most beneficially for all parties, by the Revised Statutes, and each party is put in a situation to assert his own rights, by his own means, without injuriously interfering with the rights of others, and in a mode which shall not be opposed to the rules of law, and the theory upon which the rules of evidence are founded. The right is limited to the power of showing, that the debt did not exist or was not due when the attachment was made, excluding mere technical objections to the debt; and in the mode of doing so, the intervening creditor will have the benefit of all the evidence he can produce, using the defendant in the original suit as a witness, and with the right of interrogating the plaintiff himself, to a certain extent. And so, as to the effect of the adjudication, it is only to defeat the attachment, in whole or pro tanto, by a direct judgment to that effect, without affecting the progress or the result of the principal suit, as between the parties. And another consequence obviously is, that if a subsequent attaching creditor has any other ground to contest the attachment of a prior creditor, and insists on his own lien by the attachment as entitled to preference over that of such prior attaching creditor, he is left to the same remedies as before the statute. These he may pursue by proper notices, and indemnities to the officer, or by any other means which the general law affords him.
It then becomes necessary to apply these principles to the present cases, and to distinguish them. In the suit of Baird et al. v. Williams, it appears, that the defendant himself made out and signed a note, without the knowledge of the plaintiffs, and caused an attachment to be made thereon, and that this was subsequently assented to, and ratified by the plaintiffs, but not until after the attachment had been made by the subsequent attaching creditors. The Court are all of opinion, that this note, thus given, did not constitute a debt due to the plaintiffs, at the time of the attachment, for several reasons. The consideration was a note signed by the plaintiffs as sureties, which was then payable. That an existing liability is a good consideration for an express promise, when the promisee assumes the
If it be urged, that the subsequent assent of the creditors relates back to the making of the note, and makes the transaction valid ab initia, the plaintiffs are met by the well known rule, that this principle of relation, equitable in itself as between the parties, is not to be so construed as overreaching mesne liens, and rights accrued to others before the consent and ratification. The Court are of opinion, that this debt was not due at the time of the commencement of the suit; and it is ordered and adjudged, that the attachment, so far as it was made to secure this debt, be, and the same is hereby vacated.
In the case of Randall v. Williams, it appears to the Court, that the plaintiff’s debt was due and payable, and had been so for some time previous to the commencement of the suit. The matter relied on by the subsequently attaching creditor is, that the suit was commenced by the order and direction of the debtor and not of the creditor, and that the assent of the creditor was not given to it till after their attachment. But whether this was an irregularity or not, affecting the priority of attachment, is a question which the after-bitaching creditors have no
Petition dismissed.