7 Barb. 182 | N.Y. Sup. Ct. | 1849
It was not made a point upon the trial that the warrant of attachment, being fair upon its face, protected the officer, and that the defendant was not bound to go back of it and show jurisdiction in the officer issuing it, and therefore the point was not properly taken upon the argument of the motion for a new trial, upon a bill of exceptions. But had this point been taken upon the trial, it could not have aided the defendant. As against the person named in the process the warrant, if fair upon its face, and showing jurisdiction in the officer, would have protected the defendant, an officer acting under it. But when it is sought to use the process as against third persons, as in-this case, to attack the bona fides of a transfer of property, and it is insisted that the sale is fraudulent as against creditors, the preliminary proceedings necessary to establish jurisdiction must be shown. (Van Etten v. Hurst, 6 Hill, 311.) The question upon the bill of exceptions in this cause is whether the officer had jurisdiction to issue the warrant under which the defendant justifies the act complained of. It
The plaintiff, however, not willing to rest his case upon the evidence of jurisdiction presented by the report, introduced the original application and affidavits upon which the officer acted. And having once put them in evidence he could not withdraw them upon finding they would not answer his purposes. As well might he, after proving a fact by parol, as for instance the declaration of his adversary, which, instead of aiding his defense tended directly and very strongly to overthrow it, be allowed to withdraw the evidence. For the purposes of the trial the party had made his election upon what evidence he would rely; and it would be singular indeed if, at the close of the trial of a cause, a party could select from the evidence introduced by himself such parts as he deemed favorable, and exclude the residue from the consideration of the jury. Before the evidence is given it is within the control of the party. Once given, it belongs to the cause and is the common property of all the parties. But if the defendant could have withdrawn the evidence and been permitted to fall back on the report of the judge, still the affidavits and papers were within the reach of the plaintiff, and were, as we have seen, competent evidence for him; and if in evidence, whether given in evidence by the one party or the other is immaterial. The question is whether they show jurisdiction in the officer. I think they do not. The “ facts and circumstances to establish the grounds on which application is made” must be verified by the affidavits of two disinterested witnesses. (2 R. S. 3, § 5.) The grounds upon which application was made were the same as stated in the report of the judge; and these grounds, if well established, were not within the act. The party is confined, in his proof, to the ground alledged in his application. But if permitted to establish his right to an attachment by affidavits for causes not alledged in his application, the affidavits ill
A new trial is denied.