People v. Judges of New-York

1 Wend. 39 | N.Y. Sup. Ct. | 1828

By the Court,

Savage, C. J.

This application is urged on one of two grounds : either that the relator is entitled to a pro rata distribution, or that by his superior diligence in obtaining judgment, he has gained a preference, and is entitled to satisfaction of his demand, to its full amount; neither of which positions can be sustained. This is a proceeding in rem, and must be governed by the principles which prevail in admiralty proceedings. In Clerke’s Admiralty Practice, lit. 44, p. 89, it is said,- “ If any one be indebted to divers persons, and different warrants are sued out against his property, which is attached for the purpose of securing the payment of the debts, if the goods attached be not sufficient for the payment of all the creditors, he is to be preferred who instituted the first action, or procured the goods to be attached; and this same order is to be observed respecting the other creditors, if any property remain after the first creditor has been paid, although there be not suificient to discharge all the claims.” (See 1 Atk. 296.) In Massachusetts, under the attachment law of that state, the same rule prevails. The party who first attaches, although he may be delayed in obtaining judgment, is first paid ; and the other creditors, in the order in which the attachments issued. Our statute makes no provision for a pro rata distribution; and as the attachment operates as a lien from the moment it is executed, the party who first institutes the proceeding, has a priority. Whether Jennings has a preference to any of the other creditors besides Birkbeck, represented by Barker, is immaterial; as the judgment obtained by. Birkbeck is to an amount exceeding the whole avails of the vessel. The delay of Birkbeck in obtaining judgment, does not affect his rights, which attached upon the suing out of the process. The judgment was liecessary to be perfected, to show the extent of his demand; but not to entitle him to a preference. If Jennings conceived himself injured by the delay of Birkbeck, he might have taken measures to expedite his proceedings ; but the judgment being perfected, he has no right now to complain of the delay, which occurred in its rendition.

Motion denied.