14 N.J.L. 402 | N.J. | 1834
The opinion of the court was delivered by
Among other points raised, and very ably discussed, by the counsel on both sides, it was insisted that this double proceeding against the same defendants, for the same debt, by capias out of one court, and by attachment out of another, was vexatious and oppressive; that though Curtis had not been arrested on the capias, yet, by force of our statute, it was a suit against him as effectually as if he had been served with process, and that a plaintiff cannot proceed by capias and by attachment at the same time, against the same defendant, for one and the same debt.
It will not be necessary, for the decision of this case, to express any opinion upon the points just mentioned, nor upon a variety of other matters that were incidentally, but elaborately, discussed on the argument. If the writ of attachment which has been issued in this case is not warranted by a sound con
To my mind it is very clear that the Legislature have not, by the twenty-seventh section, nor by any other part of that act, exposed the community to the evils that would result from the construction contended 'for by the plaintiff’s counsel. It was argued, that if the statute is susceptible of such a construction, we are bound to adopt it, because, by the thirty-second section we are required to construe it “ in the most liberal manner, for the detection of fraud, the advancement of justice, and the benefit of creditor's.”
Without stopping to inquire whether the construction contended for would be for the benefit of creditors, it is sufficient to say it most manifestly Avould not be, “for the detection of fraud,” or “ the advancement of justice,”—on the contrary, it would open a wide door for the former, and in many, if not in most cases,, be an entire prostration of the latter. But if the construction contended for would be as well for the detection of fraud, and advancement of justice, as for the benefit of creditors, we must not adopt it, unless it is a legal and sound construction; a construction within the spirit of the statute, and the intention of the legislature. We may devise many beneficial amendments to the act, but we must not attempt to engraft them upon the original stock, if entirely of a different character. We must not, we ma/y not, by mere construction, adopt principles at war with the great and fundamental doctrines of the common law. We must not legislate by judicial construction.
But in this case, however desirable it might be to extend the remedy, there is no room to do it. The words of the twenty-seventh section, when taken in connection with those of the next preceding section, (and the legislature have connected them, as will presently appear) not only exclude the idea of an attachment against one of several' joint debtors, or partners, for a joint, or partnership debt, while the other debtors, or partners, are here, but absolutely require a contrary construction to give them meaning and effect. The very structure of the clause, or section, leads to a different conclusion. It would be an unmeaning and confused jargon, and betray extreme ignorance in the draftsman, if we suppose he meant to give an attachment
The first section of the act gives an attachment against an absconding debtor; and against no other person. All the rest of the act, to the twenty-fifth section inclusive, relates to, and regulates, the proceedings on such attachments. Now it cannot be seriously contended, that under the provisions of the first section, an attachment may issue against one of several joint debtnrs, or partners, for a joint, or partnership debt. If it could, then the twenty-seventhsection, even if it was capable of being understood as the plaintiff’s counsel contends it should be, is entirely useless. But though the first section does not authorize .an attachment against an absconding, joint, or partnership, debt- or, for a joint, or partnership, debt, yet it does give an attachment against him for his separate debt; and on such attachment there can be no doubt but his interest in a joint, or partnership, property, subject to partnership debts, (or in other-words, what may be due to him on a settlement of the partnership, or joint, concern) may be attached in the hands of his co-partners, or joint owners ; and in respect thereof they would be -considered, and treated, as garnishees. Nor is there any thing in the first twenty-five sections of the act that relates to nonresident., ox foreign debtors, or that authorizes any attachment against their property in this state, either for their individual, or their joint debts. Hence the necessity of a new set of provisions ; and accordingly the legislature, by the twenty-sixth section, extend the remedy by attachment against the property of debtors residing out of the state. They direct that the property •of such debtors shall be taken, proceeded against, and sold, for the payment of their debts in like manner, as nearly as may be, ■as the property of other debtors is directed to be by the act: provided, that instead of the oath prescribed by the first section, the .applicant for the writ is to make oath that his debtor is non resident in this state.
Now it is observable, that if the legislature had stopped here, this section would have given an attachment, as well against nonresident, or foreign, joint debtors, or partners, if all were absent,
That such was the intention of the legislature, and that when.
This construction, or rather plain common sense reading of the statute, restraining the operation of the twenty-seventh section to the case of non-resident joint debtors, or partners, when they all reside abroad, or are dead, leaving heirs, or representatives, abroad, not only gives a full and satisfactory effect to all its provisions, and introduces a valuable and highly beneficial remedy to creditors of foreign debtors and partnerships, having property, rights and credits, within our jurisdiction, which could not otherwise be reached; but does not involve us in the monstrous, dangerous and oppressive consequences, and legal absurdities, incident to, and indeed inevitable upon, the construction contended for by the plaintiff’s counsel. I will only intimate some of the difficulties that meet us upon the plaintiff’s doctrine. What will yon do with the words, “ heirs, executors, and administrators,” found in the twenty-seventh section ? Surely, the legislature did not mean to say that if joint debtors, or partners, should die, leaving heirs, or having executors, or administrators, residing here, a creditor may proceed by attachment against such present heirs, executors, or administrators. This would be to introduce a new law of distribution, and be as mischievous in effect, as it would be novel in nrino’ple. But besides this, the attachment could not issue withe;, a preliminary affidavit; but what affidavit is to be made in such ease ? ISot that the heir, executor, or administrator, has absconded; such an affidavit could not be made, if they were here. Would you make oath that the ancestor, or the testator, or intestate, absconded. in his life time, and died in foreign parts? But neither the first nor the twenty-sixth section gives any such form of affidavit. The same difficulty would exist if the debtor absconded, taking all his heirs with him, and died abroad, having no personal representatives here. There is no affidavit preseri
But if we understand the twenty-seventh section as only intended to extend the foreign attachment to the case of non-resident joint debtors and partners, when they all reside abroad; and in case of their death, to their non-resident heirs or personal representatives, then no such difficulties exist; such non-resident heirs, or representatives, would, in legal contemplation, be the debtors, and upon an affidavit that they were non-resident, an attachment might issue.
Again—It is perfectly obvious that if the twenty-seventh section is not taken as part of, and in connection with, the twenty-sixth section, then it gives a writ of attachment against joint obligors and partners who may all be resident and present in the state, which will not be pretended. The construction adopted by the plaintiff’s counsel, and upon which the attachment in question was issued, would be very dangerous, if not destructive, to all joint, and partnership establishments in the state. Who would invest his capital in a joint, or partnership concern, if the non-residence of one of the partners, or his temporary absence, exposed the whole partnership effects, rights and credits, to the- controlling and withering influence of an.attachment ? A vindictive creditor, or any person claiming to be a creditor, residing here, or in any part of the world, if one partner happened to be abroad, might destroy the credit, and ruin the business, of the whole concern. We cannot adopt a construction fraught with such consequences, unless constrained to do so by force of plain and unequivocal enactments to that effect.
But let us look for a moment at the difficulties we have to encounter in the case now before the court. Suppose Curtis, the defendant, should appear and put in bail to the attachment; there will then be two suits going on against him ; one in this court, and one in the Common Pleas, for the same identical cause of action—for he will be as effectually bound by the judgment that may be rendered in the suit, commenced by capias in the Common Pleas, as if he, as well as his partners, had been served
It was argued, however, by the plaintiff’s counsel, that if the twenty-seventh section was struck out of the act, the plaintiff, by force of the first section, might have an attachment against one of several partners, for a partnership debt, to be executed upon his separate property ; that each partner is a debtor, and his interest in the partnership effects, at least after the debts of the firm are paid, is his separate property, and therefore liable to be attached. In support of this position, the case of Chipman, 14 Johns. R. 214, & 16 Johns. R. 102, is referred to.
The judgment of the court, in the case just mentioned, so far as it is founded on general principles, and not on their own statute, is certainly entitled to respect; but admitting that on attachment against A. for his separate debt, his interest in a partnership concern may be attached (a position I am not disposed to question) yet 1 am not prepared to sustain the doctrine that each partner is a debtor to the whole amount of a partnership debt, in such a sense that a creditor of the firm may proceed against one partner by attachment, for a partnership debt, if the rest of the partners are in this state. In the case of partner
Cited in Barber v. Robeson, 3 Gr 18 ; Haight v. Executors of Bergh, 3 Gr. 184 ; Brown v. Bissett, 1 Zab. 50 ; Allen v. Agnew, 4 Zab. 446 ; Linford v. Linford, 4 Dutch. 116.