18 N.Y. 355 | NY | 1858
The attachment, the validity of which is collaterally attacked in this action, was issued under sections 34 and 35 of the act to abolish imprisonment for debt (Laws of 1831, ch. 300), as amended by chapter 107, of the Laws of 1842. To authorize an attachment under those sections it must, among other requisites, satisfactorily appear to the justice that the defendant is about to remove from the county any of his property, with intent to defraud his creditors, or has assigned, disposed of, secreted, or is about to assign, dispose of or secrete any of his property with the like intent. The plaintiff, by his own affidavit or that of others, must, before the attachment can be issued, prove to the satisfaction of the justice, the facts and circumstances to entitle him to the same.
In this class of cases, where facts are preliminarily to be proved as the basis of the right to employ the process, if the proof has a legal tendency to make out the case required by the statute, although it be so slight and inconclusive that, upon a direct proceeding to review it, the magistrate's action would be reversed, yet in a collateral action the process will be deemed valid. It will be so deemed because the justice, having proof presented to him, and being required by law to determine upon the weight of the proof, has acted judicially in making his determination. His decision may be erroneous but is not void. (Miller v. Brinkerhoff, 4 Denio, 118; Van Alstyne v.Erwin, 1 Kern., 331.) With what liberal indulgence to officers and parties courts *357 judge, even upon such jurisdictional questions, and the ground of policy on which that course rests, are shown in the last case cited.
The only point in which a defect of proof can be claimed to exist in this case respects the intent to defraud creditors. Certainly, the proof presented was not strong, and upon a direct proceeding to review the action of the justice in issuing the attachment, it would not be held sufficient. But coming up in this collateral way it seems to me that there was proof upon the point of intent, which presented to the justice a case for the exercise of his judgment as to its cogency. It was proved that the debtor was a farm tenant of Kelley; was indebted to him and to other persons, and had been frequently applied to by him for payment, and as frequently had refused it; had removed most of his farm crops and disposed of them; appeared to have money in his possession, and not only still refused to pay presently, but added that he did not know whether he should pay or not. These circumstances, with others corroborative of them and of the same nature, although they were far from conclusively proving an intent to defraud creditors, still tended that way. They, no doubt, created a conviction in the mind of the creditor and the justice that such was the purpose of the debtor, and we cannot say they were so completely without force as proof as to render the proceeding of the justice utterly void, and the party a trespasser in availing himself of the process which the justice awarded.
The judgment must be reversed and a new trial ordered.
SELDEN, J., expressed no opinion; all the other judges concurring,
Judgment reversed and new trial ordered. *358
