Thompson & Tatham v. Dickerson , 12 Barb. 108 ( 1851 )

By the Court,

Edmonds, P. J.

There was no error in refusing to nonsuit. Whether there was any breach of the contract, was a question of fact, on which there was some evidence, and which was properly submitted to the jury. And no error can be discovered in the ruling on the other grounds of that motion. In excluding West as a witness, I am of opinion there was no error; for in these proceedings—the mere creature of a statute— and where the creditor is required to establish his demand in the same manner as in an action against the debtor, the debtor is substantially a party to the suit. Besides, in this case, West had an interest which the defendants could not release,, and that was bis claim to recover from the plaintiff the price of the cargo of coal already delivered, and which might be affected by a recovery in this suit.

One of the points taken on the argument relates to the judge’s charge. Ho exceptions to the charge having been taken, that point can not be considered.

As to the remaining questions in the case, the plaintiffs in error have mistaken the enactments of the statute. It is true there must be a debt of at least $100, to warrant an attachment in the first instance, but it by no means follows that that question, as it affects the original jurisdiction to issue the attachment, can be raised in a suit on a bond given to discharge it. On the contrary, it is evident that the statute did not so intend, but intended that a non-resident or absconding debtor, who was liable to an attachment, should not have the privilege of removing it, unless he paid whatever he might chance to owe the prosecuting creditor. Hence, the condition of the bond is to pay, to each attaching creditor, the amount justly due and owing by such debtor to him, at the time when he became an attaching creditor, on account of any debt so claimed and sworn to by him. (2 R. S. 12, § 55.) And, by a subsequent law, it was enacted that the bond should contain a farther condition, that in the event of its appearing that any sum of money was due to any attaching creditor, the costs and disbursements of obtaining the attachment, and all subsequent proceedings, should be paid. (Laws of 1833, ch. 52, § 2.) In order, then, to entitle the plaintiff to recover on the bond, it is not necessary for him to establish a debt of at least $100. It is enough for him to show that any thing was due him. Such an amount of indebtedness must be established, in the first instance, to warrant the attachment; but when that is established to the satisfaction of the officer issuing the attachment, that question is not open in a suit on the bond, but the establishment of a debt, for any amount, forfeits the bond.

[New-York General Term, October 6, 1851.

The objection, as to costs, is answered by the remark, that the recovery in this suit was for the. debt of $2600, and not merely, as it seems to be supposed, for $50 damages.

And so, there appearing to be no error, judgment must be affirmed.

Edmonds, Mitchell and Edwmrds, Justices.]