ATTACHMENT. ATTACHMENT. 1. Chapter 107 of the Laws of 1849,-which provides that suit may be brought against foreign insurance corporations, upon any contract made or delivered within this State, authorizes an attachment to be issued under the Code as a provisional remedy in an action on a policy of insurance issued in this State, although the case be not within the strict reading of section 427 of the Code. Supreme Ct., 1861, Burns a. Provincial Ins. Co., Ante, 425. 2. Under the proceedings, under the Revised Statutes, against a nonresident debtor, all creditors at the time of issuing the first warrant of attachment against him, are entitled to come in and share in the distribution of his estate, whether they be residents or non-residents of this State or the United States, and without regard to the place where the debt was contracted. The statute provides for "all the creditors." [5 Cow., 293; 6 Ib., 603; 3 Rev. Stat., ch. 5, pt. 1.] Ct. of Appeals, 1861, Matter of Bonaffe, 23 N. Y., 169; affirming S. C., 3 Barb., 469; 18 How. Pr., 15. 3. Such right is not devested by the creditor's being a party to a concordat or composition with creditors, made in France, where the deb.or resided, and confirmed by its judicial tribunals, which provided that the debtor should be free in his person and his property. Ib. 4. Whatever may be the effect of such concordat in respect to the future acquisitions of the debtor, it does not discharge the claim of any creditor to share in the existing property of the debtor. Ib. 5. It seems, that proceedings under the French bankrupt system never effect the absolute discharge of the debtor, but that its extent depends upon the interpretation of the composition between him and the creditors. Ib. 6. As against the defendant in the attachment-suit, or any party confessedly holding his property, a warrant of attachment is abundant authority to compel the delivery to the sheriff of the property, and to enforce the right by action, in case of a refusal to deliver. Supreme Ct., 1860, Kelly a. Breusing, 33 Barb., 123; affirming S. C., 32 Ib., 601. 7. Before the sheriff is entitled to require a certificate designating the nature and extent of defendant's property from a person alleged to have in his possession property belonging to the defendant in an attachment or execution under § 236 of the Code, he must disclose the fact that he has such execution or attachment. N. Y. Superior Ct., Chambers, 1862, Schieb a. Baldwin, Ante, 473. 8. An attachment granted on affidavits in which no material fact is VOL. XIII.-32 ATTACHMENT. stated upon actual knowledge, but all is upon information and belief, cannot be sustained. In a remedy of so grave a character as the attachment, tying up the entire property of a party pending a suit, the affidavit upon which the proceeding is authorized should be explicit, and made in general upon positive knowledge of the deponents, so far as to establish a prima-facie case, and when affidavits of persons who give the information, cannot be obtained from the peculiar circumstances of the case, those circumstances must be stated, with all the grounds of suspicion, so as to satisfy the judge that the facts exist, and that plaintiff has produced the best evidence in his power. [3 Sandf., 703.] Supreme Ct., Sp. T., 1861, Hill a. Bond, 22 How. Pr., 272; S. P., Brewer a. Tucker, Ante, 76. 9. An application by a defendant under §§ 240 and 241 of the Code, for the discharge of an attachment issued as a provisional remedy, is purely ex parte. Supreme Ct., Chambers, 1861, Sanborn a. Elizabethport Manufacturing Co., Ante, 432. 10. If the judge has directed that the plaintiff have notice of the application, and the applicant fail to appear at the time specified, the judge cannot dismiss the application with costs. Ib. 11. On a motion to discharge an attachment, the plaintiff cannot support his attachment by additional affidavits in regard to facts existing at the time the attachment was issued, except when the motion is made on affidavits on the part of the defendant. N. Y. Superior Ct., Sp. T., 1861, Brewer a. Tucker, Ante, 76. 12. After judgment for the plaintiff has been recovered in an action in which an attachment has been levied on defendant's property, defendant is not entitled to a discharge of the attachment on giving an undertaking, even though the execution of the judgment has been suspended by an appeal, which is still undetermined. N. Y. Superior Ct., Sp. T., 1861, Spencer a. Rogers' Locomotive Works, Ante, 180. 13. A sheriff having levied on property under an execution, subsequently attached the same property in an action against both the plaintiff and defendant, in the action in which the execution issued, as joint-debtors, and afterwards sold the property under execution. It appearing that he was about to pay the proceeds to the execution-creditor, the attachment-creditors obtained an order requiring the sheriff to deposit the money with a trust company, subject to the order of the court. Held, on appeal, that the order was irregular. In the absence of proof that the sheriff and his sureties were irresponsible, he could not be required to part with the property attached. N. Y. Superior Ct., 1861, Dodge a. Porter, Ante, 253. 14. Upon the entry of judgment, an attachment previously issued in the ATTORNEYS. action as a provisional remedy ceases to be in force, and the property of the defendant cannot be seized under it. N. Y. Superior Ct., Chambers, 1862, Schieb a. Baldwin, Ante, 473. 15. Sections 230, 240, and 241 of the Code of Pro.; amended, Act of April 23, 1862. JUSTICES' COUrts, 2, 4. ATTORNEYS. 1. Though attorneys are in a certain sense public officers [10 Paige, 352; 2 Den., 207], they are not within the statute (1 Rev. Stat., 122, § 36), which provides that every office shall become vacant by the incumbent ceasing to be an inhabitant of the State. That statute is applicable to offices filled by election or by appointment by the governor, and is intended not only to declare what shall constitute vacancies in such offices, but to provide for filling them. It is manifestly inapplicable to the case of attorneys. Their tenure of office is regulated by 1 Rev. Stat., 108, § 29, subject to removal or suspension by the courts in which they practise; they hold their office during life. Supreme Ct., Sp. T., 1862, Richardson a. Brooklyn City & Newtown R. R. Co., 22 How. Pr., 368. 2. An attorney-at-law, who is a non-resident of this State, has no authority or right to, and cannot, practise in the courts of this State. Ib. 3. The practice of the court, not to allow attorneys to become sureties for their clients in legal proceedings, extends only to bail for the appearance of parties arrested. Supreme Ct., Chambers, 1861, Ryckman a. Coleman, Ante, 398. 4. Where one partner gave authority to an attorney to act for the firm, and the other afterwards, with knowledge of the acts of the attorney, acquiesced in the agency, and the proceeds of the transaction were applied to the use of the firm,-Held, that the authority of the attorney was sufficiently made out. Supreme Ct., 1861, Bank of North America a. Embury, 21 How. Pr., 14. 5. An attorney's right to compensation for services in one matter is not forfeited by his misconduct and breach of trust in another matter, and he may set up such right to compensation as a counter-claim in an action for relief against such breach of trust. N. Y. Superior Ct., 1860, Currie a. Cowles, 6 Bosw., 452. 6. Where an attorney is charged as trustee of land of his client, and required to convey it to his client as the equitable owner, or account for its value, he is entitled to be paid for his reasonable services in perfecting the title. Ib. CASE. BAIL. Bail are not exonerated absolutely by a judgment in favor of their principal; if that judgment is set aside, and the plaintiff allowed to proceed in the action, their liability revives. N. Y. Com. Pl., 1861, Von Gerhard a. Lighte, Ante, 10. ATTORNEYS, 3; DEBTOR AND CREDITOR, 2; SUPERSEDEAS. BROOKLYN. Since the charter of the city of Brooklyn fixes the salary of the corpora tion counsel and that of the assistant which he is authorized to employ, neither the Common Council nor the corporation counsel has power to employ associate counsel beyond the sums so allowed. Supreme Ct., 1861, Hyde a. Auditor of Brooklyn, 21 How. Pr., 339. MECHANIC'S LIEN, 1, 2. CASE. 1. The opinion in the cause written by the referee, in which he assigned his reasons for the conclusions of fact and law contained in his decision, should be printed with the case, and presented to the court by the appellant's counsel. (See Rule 43.) Where it had not been printed or presented, the court postponed the argument of the cause until the next general term. Supreme Ct., 1861, Warren a. Warren, 22 How. Pr., 142. 2. Until the time (ten days) or its extension, given to file a case after its settlement has expired, the case cannot be noticed for argument. The object of allowing the ten days, is to enable the appellant to prepare a copy of the case as settled, from which to print. The rules of the court make no provision for the time within which a case must b printed after it is settled, or within what time after such settlement a notice of argument may be served. It may often happen that a general term will assemble within eleven days after the settlement of the case; and if so, it could not be expected that the case would be filed and printed, and copies served, eight days prior to the term. Thus, where the time to file which would expire on the 9th is extended until the 19th, a notice of argument for a term which commenced on the 16th, does not impose upon the appellant the duty of serving copies of the case eight days before the first day of the term. Extending the time to file is equivalent to extending the time to print. N. Y. Com. Pl., 1861, Donohue a. Hicks, 21 How. Pr., 438. CAUSE OF ACTION. 3. An unexcused delay of over eight months, after a case has been settled by lapse of time, to move for liberty to submit the proposed case and amendments for settlement, precludes the party from any relief. N. Y. Superior Ct., 1860, Whiting a. Kimball, 6 Bosw., 690. 4. Where, on an appeal, the judgment has been affirmed by default, it will not, in such case, be vacated to enable such a motion to be made, especially where the attorney had notice, at least two months before such affirmance by default, that it would be insisted that the case was settled by lapse of time, and failed to move promptly for relief, or to appear and object to the hearing of the appeal, or apply on sufficient grounds for a postponement of the argument. Ib. APPEAL, 9, 16, 17; MOTIONS AND ORDERS, 10; REFERENCE, 8, 9. CAUSE OF ACTION. 1. A debtor residing in the State of New York made an assignment, for benefit of creditors, of personal property situated in the State of Illinois. The assignment was executed and delivered within this State. After the execution and delivery of the assignment, certain of his creditors, who were also residents of this State, had obtained an attachment against the debtor's property in a court of Illinois, and had levied it upon the same personal property which was included in his assignment; and subsequent to the assignment, they caused the property to be sold on exccution under a judgment recovered in that action. Held, that the assignees might maintain an action against the attaching creditors, for damages for selling the property. Supreme Ct., 1860, Van Buskirk a. Warren, Ante, 145. 2. The proceedings of a court in another State, in such case, are not an estoppel against the assignees who were strangers to such proceedings. Ib. 3. The right of the assignees should be determined, not by the law of Illinois, but by the law of New York. Ib. 4. An action may properly be brought, under 2 Rev. Stat., 451, § 23, against infant next of kin, where the amount of the estate coming to them, as such next of kin, has been paid over to their general guardian. Supreme Ct., 1861, Merchants' Ins. Co. a. Hinman, Ante, 110. 5. In such case, the judgment should direct the money to be paid out of the funds in the hands of the guardian. Ib. 6. Money voluntarily paid upon a claim of right, without mistake or ignorance of the facts, cannot be recovered back. Supreme Ct., Sp. T., 1861, Forrest a. Mayor, &c., of N. Y., Ante, 350. |