14 Barb. 96 | N.Y. Sup. Ct. | 1852
This action was brought to recover damages for the taking and detaining, by the defendants, of a canal boat, belonging to the plaintiff. The taking consisted in a seizure of the boat by a constable, by virtue of an attachment issued by the defendant Folger, who was a justice of the peace, in favor of the defendant Marshall, against the plaintiff, under the 33d section of the act to abolish imprisonment for debt, which process was delivered by Marshall to the constable, with a direction to take the boat. No bond was required by the justice, or given, on issuing the attachment. It is claimed, on the part of the plaintiff, that a bond was necessary in the case—such an one as is specified in the 35th section of said act—and that none having been given, the attachment was void, and the defendants are answerable as wrongdoers for the execution of it. The decision of the court of appeals in Bennett v. Brown, (4 Comst. 254,) is conclusive in support of the first branch of this position, as to the necessity of a bond; and the conclusion contended for, from the omission to give a bond, appears to me to be, both upon principle and authority, unavoidable. The jurisdiction of a justice to issue an attachment is derived wholly from the statute, and is in all cases made, by the statute, dependent upon a compliance with certain requisites therein prescribed. Proof is to be made by affidavit,
The fact that at the time the attachment was issued by Justice Folger, the late supreme court had decided that a bond was not necessary to authorize it, (Clark v. Luce, 15 Wend. 479;
Selden, Johnson and T. R. Strong, Justices.]
The conclusions to which I have come, upon the questions' discussed, render a consideration of-other questions in the cause unnecessary.
The judgment, appealed from must be reversed, and a new trial granted, with costs to abide the event.