Thomas v. Merchants' Bank

| New York Court of Chancery | May 24, 1841

The Chancellor.

Without stopping to enquire whether the vice chancellor is right in supposing that no property could be attached in a suit against a foreign corporation, previous to the act of May, 1840, except such as was liable to sale on execution under the general provisions of the article of the revised statutes relative to executions against property, (2 R. S. 366, § 18, 19, 20,) I am satisfied that whatever was the proper subject of the attachment might, if attached by the sheriff, be sold by him on the execution to satisfy the judgment recovered in the proceeding upon such attachment. The statute contemplates a proceeding in rem against the property of the corporation, attached by the sheriff, and the execution only goes against that particular property. If the sheriff, therefore, had actually attached any property 'which was the proper subject of attachment so as to subject it to this proceeding in rem, he should have sold it on the execution, or have applied it in satisfaction of the. judgments. As I understand the facts, however, the sheriff neither attached these choses in action in the Merchants’ Bank, nor made any enquiries to ascertain whether there was any thing in that institution, belonging to the foreign corporation, which he could seize upon. And as he did not return upon the attachment that there was any property or effects of that corporation in the hands of the cashier of the Merchants’ Bank, the statement that he had given notice to the cashier of the attachments does not appear to be such an execution of the process as to authorize the plaintiffs to proceed to judgment in the suits thus commenced.

I also think the vice chancellor was right in supposing that if these returns were sufficient to sustain the judgments of the complainants, the property of the foreign corporation, not actually attached, cannot be reached by an ordinary creditor’s bill in this case ; not only on the ground that the attachment is a proceeding in rem merely, but also upon the ground that before the recovery of the judgments, .and indeed before the sheriff had attempted to execute the attachment, all the debts and choses in action of the foreign corporation had been vested in the receivers appointed by the court of chancery where such corporation was located. Another fatal objection to this bill, considered as a creditor’s hill merely, is that the foreign corporation, which is the judgment debtor, is not made a defendant ; and it does not appear to have been legally dissolved. Besides, there appears to be no foundation for a preliminary injunction against the Merchants’ Bank, as there is no pretence that the bank is irresponsible ; so that if the complainant succeeds in this suit, the decree against the defendants will be effectual if the monies and other property remain where they now are.

The decision of the vice chancellor must therefore be affirmed, with costs.