12 Barb. 265 | N.Y. Sup. Ct. | 1851
By the Court,
In these three cases, an appeal has been taken from an order, at special term, allowing amendments to be made in each case, to the attachments issued therein, and upon such amendments being made, denying the motion of the defendant, to set aside such attachments. In their main features, the several cases are similar, and the principal questions involved, the same.
These questions may be reduced to two heads:
1. Those concerning the right to issue any attachment at all.
2. Those concerning the form of the attachments actually issued.
The attachments were, upon the argument, all treated as having been issued on the 29th of January, 1851; though in the papers furnished to us, the attachment in the action of Genin v. Lockwood, bears date the 30th January. 1851. They will be here considered as having actually been issued on the 29th of January.
The first point made by the defendant’s counsel is, that in each of these cases, the claim upon which the suit was commenced was not then due; as the defendant had all the day on
It appears, as the result of the affidavits upon which the attachments were granted, of those upon which the motion to discharge was founded, and of the affidavits in opposition to such motion, that in each of the above cases, the plaintiffs had contracted with the defendant, to deliver him stock, for cash on delivery, and that the day for the performance of the contract, on the plaintiffs’ part, was, or might at the defendant’s option, be the 29th of January. That on that day, he called upon the plaintiffs for the stock, which was transferred to him, either upon his assurance that he would pay' cash for it, upon its transfer; or, in expectation that he would do so, according to previous agreement, without such express promise, at the time of delivery. That upon the transfer being made, the several plaintiffs sent to the defendant’s office, for their money, and not succeeding in. them first efforts, repeated their visits; that at or about two o’clock, the defendant left Wall-street, and that shortly before three o’clock, the plaintiffs either received from the defendant’s clerk, or took from the defendant’s drawer, with such clerk’s assent, checks for the respective amounts due them, drawn to their order on the Merchants’ Exchange Bank, not certified, however; and which, when presented, were refused payment for want of funds, the defendant having, on that day, drawn out all his funds in that bank, by checks, payable to himself or others.
It is contended that the taking of these checks suspended the plaintiffs’ right of action until the next day; as the defendant was entitled to the whole of the 29th to meet the same. If these checks were not given to the plaintiffs, but were obtained, as was on the argument contended, by the tortious act of the plaintiffs in seizing upon that which did not belong to them, then, whatever new right of action accrued thereby to the defendant against the plaintiffs, their original right of action upon the contract concerning the stock was unaffected and continued in full force; but, if the checks were in fact given by the defendant’s authority, the case of Bickford v. Maxwell, (6 T. R.
Treating the checks then as nullities, what was the condition of the parties ? The plaintiffs had delivered their property to the defendant, upon his then or prior agreement, to pay cash on delivery. Did the defendant, in consequence of such delivery, obtain credit for the whole of the day to pay the cash ?
Upon the argument, the case of Osborn v. Moneare, (3 Wend. 171,) was cited, that an action can not be brought against the maker of a note on the last day of grace, because he has the whole of that day in which to make payment; and that a suit commenced on such last day was premature. So too Chapman v. Lathrop, (6 Cowen, 110,) and Lupin v. Marie, (6 Wend. 77,) were cited in support of the proposition that if the contract called for cash on delivery, a delivery without requiring the cash, was a waiver of the condition.
But the waiver of the condition is in respect to the right of property of the vendor in the goods sold, which, by such delivery.
But such is not the contract appearing in this case; by its terms the acts of delivery and of payment, were to be simultaneous ; the defendant was not to pay on the 29th January, but on the delivery of the stock: andr|it would be an alteration of the contract of the parties, to hold that because the transfer was made without, at the very same instant, receiving the cash, the right to demand the cash was postponed to the next day. It seems clear to me that the defendant, not paying the cash upon the delivery of the stock to him, was immediately liable to an action for his breach of contract. In this view the objections taken to the proceedings are untenable.
It having been held in this court that, upon a motion to discharge an attachment, founded upon affidavits on the part of the defendant, the plaintiff was at liberty to sustain his attachment, by affidavits in addition to those upon which it was granted, if there was any insufficiency in the original affidavits, which is now supplied, the defect can not now impair the attachment. All the affidavits in the several cases must therefore be considered. The attachments in these various cases differ in the recital of the occasion for which they were issued. Thus, in the case of Genin Lockwood, the recital is, “ that the said Bay Tompkins has departed from the state of New-York with intent to defraud his creditors, or to avoid the service of civil process, or keeps himself concealed therein with the like intent.” In the case of Cammann if Whitehouse, the recital is, “ that the said Bay Tompkins keeps himself concealed in the state of New-York, with the intent to defraud his creditors.” In the ease of Gilbert Sf Johnson, the recital is, “ that the said defendant has absconded from the state for the purpose and with the intent of avoiding the service of a summons, and to defraud the plaintiffs and his other creditors.”
The circumstances under which the defendant was thus charged, as an absconding or concealed debtor, are briefly these: He was a stockbroker, his place of business being in Wall-street, his residence in Twenty-ninth-street. In the early part of the 29th of January, he was engaged in receiving transfers of stock, on contracts maturing that day, to a large amount; in transferring stock, to meet his contracts for delivery, maturing cm that day ; and receiving upon such transfers, considerable sums of money. The transfers made to him were, upon previous agreement, to pay cash on delivery, or statements at the time of transfer, that he would so pay the cash ; when his certified checks were sent for, he postponed delivering them, saying they were not yet cer
It is evident that there was no departure from the state, for any purpose, or with any intent. It remains to be considered whether there was not a concealment within the state, with in
But whatever other objects the defendant may have had, and although the result may prove that by avoiding that which was harmless he has afforded to his creditors the opportunity of availing themselves of a remedy which they would not" otherwise have had, it is difficult to avoid the conclusion, from the circumstances of this case, that the defendant concealed himself temporarily ; and that part of the intent of such concealment was to avoid the service of a summons. He was liable to various actions, for debts contracted under circumstances strongly suspicious, unless explained; without explanation to any one, or informing any body, except a personal friend, where -he was going, he left his place of business at an unusual hour, went to an unusual place, and remained there for an unusual time; his place of temporary resort was communicated only to Solomon Kipp, and to his two counsel. Charles Kipp as keeper of the house was almost necessarily acquainted with his presence there. Hone of his family, or acquaintance would from any thing that appears, have thought of looking for him in the place to which he resorted; whilst the defendant was still there, Solomon Kipp went, accompanied by his wife, to the defendant’s house to take tea; found there an officer with a summons against the defendant, and told such officer that he did not know where the
It is true, that it might happen to almost any man, to be absent as long as the defendant was, without those connected with him being aware of the place in which he was to be found; but each case must depend upon its own circumstances; and in this instance, the'-circumstances seems to have been sufficient, in the first place, to warrant the issuing of the attachment; on the ground that the defendant had departed from the state, or kept himself concealed therein, with intent to avoid the service of a summons; and upon fuller inquiry, to sustain the attachment, on the ground that the defendant concealed himself within the state, with intent to avoid the service of a summons.
Another question remains to be considered, as to the form of the attachment. It was contended, at the special term, that the warrant of attachment mentioned in the code, was process of the court; and as such, should be tested in the name of a justice of the court, sealed with its seal, signed by a clerk of the court, and subscribed by the attorney issuing it, and be allowed by a justice of the court, and should also have a return day.
The justice before whom the motion came on to be argued at the special term, sustained the objection, except as to the return day; but allowed the' several warrants of attachment to be amended, by adding the proper teste; the seal of the court; the signature of the attorney; and the word, “ allowed,” before the signature of the judge signing the warrant
It is now contended that the warrant of attachment is process for the commencement of an action, and as such, not amendable; and consequently that the judge erred in allowing any amendments to be made.
Upon the argument, the case of Morgan v. Avery, (2 CodRey. 91,) was referred to, as establishing the doctrine that a
The term used in the code is, warrant of attachment: a warrant of attachment must be obtained from a judge of the court in Avhich the action is brought, or a county judge. (Code, § 228.) "W arrant is a term well known to the law; originally derived from the criminal law, it has been applied in many civil proceedings ; for instance, in justices’ courts, and in the attachment proceedings existing before the code took effect. It was originally under the hand and seal of the magistrate, by whom it was issued; though sufficient, even at common law, Avithout a seal. In criminal warrants, and in cases of justices’ warrants, seals are now dispensed with by statute, and may well be dispensed AA'ith in attachment warrants ; the seal usually affixed—a mere wafer—adding nothing to the authenticity of the magistrate’s signature, and the warrant, even at common law, being sufficient Avithout a seal, (See 4 Burns’ Justice, tit. Warrant, 4, p. 266; 1 Chit. Crim. Law, 38, 5th Am. ed. (Beekman v. Traver, (20 Wend. 67,) though it decides that the term warrant imports a seal, does not decide that a warrant without seal is insufficient; and this case is cited in support of the dictum in Smith v. Randall, (3 Hill, 495.)
The warrants of attachment, in this case, are in the usual form of all such warrants issued since the code, and are framed according to the usual form of warrants, changing the recitals and command to suit the different purpose for Avhich these issue. They are in the name of the people; directed to the sheriff; recite an application on oath, from which the facts appear, which
Nothing is said in the statute Avhich indicates the necessity of a seal of the court, or of a cleric’s signature. It is simply the Avritten order of the judge issued upon, and as a judicial determination from the facts presented to him, that the case is one in Avhich an attachment should be granted. It is one of the provisional remedies Avhich the court is authorized to extend to suitors, and that in the simplest manner, and upon application to a judge at chambers ; and under sections 174 and 176 amendable, if amendment be needed, to conform it to the provisions of the code.
It seems to me that the intention of the legislature is so clearly indicated, that the Avarrant of the judge alone should be sufficient, as not to authorize the court to affix other requisitions of formal teste, signature of clerk, and seal. The signature of the attorney to the warrant should, however, he required, from motives of convenience which must be obvious to all.
So far as the return day is concerned, none is usually contained in warrants; in criminal cases, the command is to bring the party forthwith before the magistrate, to be dealt with according to law; but the statute would require this upon arrest, even if omitted in the warrant. In these warrants of attachment the command is to seize the property and proceed thereon according to law; and the law has pointed out what, upon seizure, is the officer’s duty. (Code, § 232.)
It seems to me, therefore, that the amendments authorized to be made to the warrants of attachment were unnecessary, and that in their original condition the warrants were, as to form, sufficient, although the attorney’s signature should, properly, have been affixed.
The conclusion is, that the order made at special term, in each of the above cases, should he affirmed, with costs.
Edmonds, Mitchell and King, Justices.]