In re Brown

21 Wend. 316 | N.Y. Sup. Ct. | 1839

By the Court,

Bronson, J.

The trustees of a non-resident debtor are vested by law with all the estate, real and personal, of the debtor; and they have power to sue in their own names, or otherwise, and recover all the estate, debts, and things in action, belonging or due to the debtor. 2 R. S. 41, § 6, 7, 1 think the trustees are creditors within the meaning of the statute, and that they may proceed by attachment as well as in the more usual forms for enforce ing legal demands, If they are creditors, we need not in? quire whether they come within the description of “ personal representatives,” mentioned in the third section of the statute. 2 R. S. 3.

It was said, that these trustees represent a non-resident, and that a non-resident creditor cannot proceed by attachment against a non-resident debtor. There are two answers to this: The first has been given already. The trustees, being assignees by law of the debt, with power to sue in their own names, are to be regarded as creditors within this statute ; and then this is'a case oi'resident creditors, proceeding against non-resident debtors. The second answer is, that a non-resident creditor may proceed by attachment, where, as in this case, the debt arose on a contract made within this state. 2. R. S. 3, § 1, 3.

Is it enough that the two witnesses prove the non-residence of the debtor, or must they prove more 1 An attachment may issue against a non-resident, when he is indebted, either on a contract made, or to a creditor residing within this state. And it may also issue against a resident debtor, who shall secretly depart from, or keep himself concealed within this state, with intent to defraud his creditors, or to avoid the service of civil process. § 1. • After declaring by whom and in what manner application for the attachment shall be made and verified, the 5th section provides, that “the facts and circumstances to establish the grounds on which such application is made, shall also be verified by the affiavits of two disinterested witnesses.” It is said that “ the grounds” on which the application is made must include every thing which goes to make out a' title to the process ; but I think the words were used by the legislature in a more restricted sense, and that the two witnesses need say nothing about the debt or the residence of the creditor.

Application for an attachment may be made by any creditor, either in or out of the state, having a demand against ,the debtor of a particular description and amount. It must be made in writing, verified by the affidavit of the creditor, in which must be specified the amount of the debt, “ and the grounds upon which the application is founded.” § 3, 4. •“The grounds” here, evidently point to something other than the debt, or the residence of the creditor. Those are matters to be stated by the applicant, and to which he is to add “ the grounds upon which the application is founded.” This expression applies to the debtor—“ the grounds” for proceeding against him must be specified. It must appear either that he is a non-resident, or else, that being a resident, he has secretly departed, &c. This is the only part of the .case which need be verified by the affidavits of two disinterested witnesses. § 5.

A reference to the old law will tend to confirm this construction. By the former statute, the cases of resident and non-resident debtors were provided for in different sections, and in neither case were the two witnesses required to prove any thing concerning the debt or the residence of the creditor. When the proceeding was against a non-resident, the creditor was only required to prove by the witnesses the single fact that the debtor resided out of this state. 1 R. L. 157, § 1, 23. In re-enacting these provisions, with some additions, Matter of Hollingshead, 6 Wendell, 553, I think the legislature did not intend to change the rule as to what fasts must be proved by the witnesses. If the proceeding be against a non-resident, the two witnesses must prove the fact of his non-residence; if against a resident, they must prove the fact that he has secretly departed, or keeps concealed, with intent, &c. The fact that there is such a debt and such a creditor as the statute specifies, may be established by other evidence. A mere change of phraseology in a revision of the statutes, will not alter the law, unless it evidently appear that such was the intention of the legislature. Yates' case, 4 Johns. R. 359.

The proceedings should be affirmed, and for the purpose of completion, should be remitted to the judge who issued the warrant. 2 R. S. 14, § 70.

Ordered accordingly.