Hubbell v. Ames

15 Wend. 372 | Court for the Trial of Impeachments and Correction of Errors | 1836

By the Court,

Nelson, J.

The evidence of the proceedings against Simplot, as an absconding or concealed debtor, was admissible under the general- issue. Clark v. Yale, 12 Wendell, 470, and Comstock v. Hoag, 5 id. 600.

As to the proof of the preliminary proceedings: the report of the commissioner’ is declared by statute conclusive evidence that the proceedings stated therein were' had ; and the appointment of trustees is also declared conclusive evidence (except in the case of reference provided for by the statute,) that the debtor therein named was a concealed, absconding or non-resident debtor, within the meaning of the act, and that the appointment and all the proceedings previous thereto were regular, 2 R. S. 12, § 62 — 13, § 68. The production of the appointment of trustees, therefore, was sufficient to show that the-officer had jurisdiction.

It is urged in behalf of the plaintiffs, that the statute does not prohibit the transfer of a note by a party proceeded against as an absconding or concealed debtor, except where it is transferred in payment of or as a security for an existing or antecedent debt. This point was substantially decided in Clark v. Yale. The defence there was that the defendants had paid the note to the trustees, and it was'held a valid payment. The principle of the defence in Comstock v. Hoag also applies here. But the statute itself'leaves no doubt upon'the point. The 23d § denounces the transfer to be “absolutely void as-against.creditors the 34th § declares that every person indebted to an absconding or concealed debtor shall account and answer for the amount of such debt to' the trustees j. the 35th § declares the payment to the debtor, after the first- publication,; fraudulent as against the trustees; and payment to-an assignee, who obtains the note. after such publication, would be-held equally fraudulent. * The 36th § authorizes the person indebted, if prosecuted by the debtor, to-give in evidence under the general issue, the fact of the attachment having -been-issued-and the-.publication of the notice at the time of the commencement of the action; :and-within the spirit of this section he may do the same when the suit is in the name of an assignee.

New trial denied.