Johnson v. Moss

20 Wend. 145 | N.Y. Sup. Ct. | 1838

By the Court, Bronson, J.

This attachment issued under the provision, 2 R. S. 230, § 26, 28, as amended by Laws of 1831, p. 404, § 35, on the ground that the defendant had departed from the county where he last resided, with intent to defraud his creditors. In stating the intent with which the defendant departed, the applicant as must generally be the case, only swears to his belief; but the facts and circumstances on which the application was founded, are directly and positively alleged. The ease does not fall within those of 10 Wendell, 420, and 14 id. 237.

The attachment did not issue against the defendant as a nonresident, Laws of 1831, p. 403, § 33, but on the ground that the defendant had departed from the county with intent, &c. 2 R. S. 230, § 26, and in such cases there must not be less than six nor more than twelve days between the teste and return of the process. Id, § 30. There is, therefore, nothing in the objection that there were more than four days between the teste aád return of the process.

The justice states that the constable returned that he had attached a table i the return itself seems to have been that the constable had levied upon one fall, &c. of a table, "Whichever may be correct, it is impossible to maintain the objection that no property was levied on. Again, it is said that it does not appear that the levy was on the defendant’s property. The attachment required the officer to take the defendant’s property, and the constable returns that by virtue of the attachment he has levied on°a table, &c. The fair and reasonable intendment is, that the property taken belonged to the defendant. The return was, I think, sufficient.

Should it be admitted that the declaration was defective, we could not interfere. This is a common law certiorari, and we cannot look beyond those questions which go to the jurisdiction of the justice, Birdsall v. Phillips, 17 Wendell, 464. On the return of the attachment, the previous proceedings having all been regular, the justice acquired jurisdiction to hear and render judgment. If he did so upon an insufficient declaration, or on defective proof, the error cannot be reached in this form. But the declaration is well enough.

In the affidavit on which the attachment issued, the plaintiff stated his claim at $27, and judgment was rendered in his favor for $45.83, besides costs. It is not improbable that injustice has been done the defendant, but a common law certiorari will not help him.

Judgment affirmed.