Van Alstyne and others against Erwine, sheriff

Van Alstyne and others against Erwine, sheriff. Notwithstanding the statute, (2 JR. S. 13, § 62,) as to the effect of the appointment of trustees in proceedings by attachment against absconding and concealed debtors, any person sought to he affected by their appointment may raise the question that the officer appointing them had not, on the face of the proceedings, jurisdiction to issue the attachment. It is a compliance with the statute, (2 JR. S. 3, § 4,) requiring the application for an attachment to be verified by affidavit, if the affidavit is indorsed upon and details all the material facts contained in the application, although, in terms, the affidavit does not refer to it. Where it is doubtful whether the debtor has departed from the state, or keeps concealed therein, with the intent specified in the statute, the application for an attachment is sufficient, if it charge in the disjunctive that he has done the one or the other. So the application may oharge.that the intent of the debtor was to defraud his creditors, or to avoid the service of civil process, where it is doubtful which was his purpose. Every witness not a party to, or apparently connected with a proceeding or issue, is to he deemed free from interest therein till the contrary is proved. Per Demo, J. Affirmative proof need not he given on an application for an attachment, that the witnesses, who verify the facts and circumstances to establish the grounds of the application, arc disinterested. Nor in a snit between the trustees and third persons, as to property claimed by them as such, can the jurisdiction of the officer to issue, the attachment, be impeached by extrinsic evidence that these witnesses had a disqualifying interest. ' Appeal from a judgment of the supreme court sitting in the fourth district. The action, which was commenced in 1848, was brought to recover the value of certain personal .property, being a stock of goods in a store, which it was averred the defendant had converted to his own use. The cause was tried in 1849, at the Montgomery county circuit, before Mr. Justice Parker and a jury. On the part of the plaintiffs it was claimed, that prior to the issuing of the attachment hereinafter mentioned, the property was owned by David C. Anthony: and they made title to it, as trustees under proceedings by attachment issued against him as an absconding or concealed debtor. The defendant, after the first publication of the notice under the attachment proceedings, had taken the property by virtue of executions against a person of whom David 0. Anthony had purchased it, alleging that the conveyance to Anthony was fraudulent as against the creditors of such former owner; and the character of that transfer was one of the questions litigated on the trial. Upon this appeal, the only questions which "were. made, with a single exception, related to the legality of the attachment. On the 23d day of March, 1848, Christian Anthony presented to the county judge of Montgomery county a petition, setting forth that David C. Anthony was indebted to him in the sum of $3074, over and above all discounts, “ as appears by the affidavit of your petitioner hereto annexed that David C. Anthony “ being an inhabitant of this state has secretly departed therefrom, with intent to defraud his creditors, or to avoid the service of civil process, or keeps himself concealed therein with the like intent,” &c. The petition then prayed that an attachment might be issued. This paper was not sworn to, but there was indorsed upon it (and as the bill of exceptions stated, forming a part of it) an affidavit of the petitioner, duly sworn to, stating the same facts as to the petitioner’s debt, and the conduct of David C. Anthony, which are contained in the petition, and in the same terms. Annexed to this petition and affidavit were the affidavits of two witnesses, Peter C. Anthony and Jacob 'C. Anthony, sworn to on the 23d of March, 1848; each of these affidavits stated in terms that, as the deponents respectively believed, D. 0. Anthony, being an inhabitant of this state, had secretly departed therefrom, &c., using the same language with the same alternative expression as in the petition. Bach of the affidavits stated that the belief of the deponents respectively were established by certain facts and circumstances, which followed. In Peter C. Anthony’s affidavit, the statement was as follows: “ That on or about the 10th day of February last, this deponent (then being one of the clerks of the said David C. Anthony at his store in Canajoharie) was informed by said David C. that he was going to Columbia, in the county of Herkimer, on some business, and that he intended to return within a few days. That said David C. left Canajoharie on that day, and has not since returned, to the knowledge of this deponent. That deponent has up to this time continued to act as clerk for him the said David C., and that deponent has made inquiry and diligently searched, and has every way in his power endeavored to find the said David C., or to ascertain where he might be found, but has not succeeded. And this deponent'further says, that the "said David C. was considerably in debt to the petitioners named and others at the time of his departure.” The statement in the other affidavit was in these words: “ That this deponent is the brother of' the said David C. Anthony, and that on or about the tenth day of February last, said David C. left home on pretense of going to Columbia, in the county of Herkimer, to collect money, which he claimed to have due him there, and that the said David has not yet returned to Canajoharie, his place of business ; and that after he had been absent several days longer than deponent understood he intended to be absent, deponent went in search of him, but was unable after diligent search and inquiry to ascertain where he might be found, or to obtain any information from him, except that after he returned to Herkimer from Columbia, he took the cars for some place west. And deponent further says, that the said David 0., at the time he left in the manner above stated, was considerably indebted to Christian Anthony, the petitioner named in the annexed petition, and to other individuals.” Upon th'ese papers the judge issued an attachment, upon which a deputy of the sheriff attached the property in controversy ; and the regular publications having been made, the judge, on the 5th day of July following, appointed the plaintiffs trustees of the creditors of D. C. Anthony, according to the statuté. The defendant’s connsel objected to these papers on the trial, on the grounds that the application for the attachment was not verified according to the statute ; that it was in the alternative, that the debtor had departed from the state, or was concealed within it, without stating which; that the alleged facts and circumstance detailed in the affidavits did not furnish a sufficient ground for the attachment. The judge overruled the objection, and the defendant excepted. The defendant’s counsel then offered to prove that each of the witnesses was interested in this manner, viz. that each of them was a creditor of D. G. Anthony in 1847, and in February and March in that year, each of them had assigned these demands with their other property to trustees for the benefit of their creditors, reserving the residue after the payment of their debts to themselves, respectively. The plaintiffs objected and the evidence was excluded, and the defendant again excepted. At a subsequent stage of the trial the offer to prove that the witnesses were interested was renewed, without any explanation of the kind of interest which was to be proved. The same disposition was made of the offer, and an exception was taken. Amongst other testimony to show the value of the property, the plaintiffs examined William Baker, who was one of the appraisers on the- execution of the attachment. He testified, upon the plaintiffs’ examination, that the property was of the value which the appraisers placed upon it, and that he thought that amount could be realized for it by selling it at auction. The defendant’s counsel put the following question: “ What were the goods worth to a creditor, to convert them into cash within a limited time by a legal sale ?” The plaintiffs’ counsel objected and the court sustained the objection. The defendant’s counsel excepted. The plaintiffs obtained a verdict, and the judgment was affirmed at a general term ; from which the defendant appealed. T. Jenkins, for the appellant. I. The want of jurisdiction is always open to inquiry, either directly or collaterally. The attachment being void is of no force against any one, party or stranger to it. (Decker v. Bryant, 7 Barb. 183.) II. An attachment being a statutory remedy, the proceedings must strictly conform to the provisions of the act, or the judge' has no jurisdiction to issue the attachment, and the want of jurisdiction is not remedied by the appointment of trustees. (Matter of Faulkner, 4 Hill, 598 ; 9 Wend. 465; 9 Cowen, 227; Staples v. Fairchild, 3 Comst. 41; 7 Barb. 183.) The application for the attachment was not verified by the affidavit of the creditor. (1 R. S. 3, § 4.) 1. If it be said that a separate affidavit setting forth the facts is equivalent to a verification of the application, the answer is that the statute has hot prescribed any such affidavit. 2. An application not verified is no application. 3. Perjury could not be assigned upon such an affidavit,, however false; for the pleader could not truly allege in the indictment that the application was verified by the applicant. III. The application for the attachment is void for uncertainty. It does not disclose whether the attaching creditor proceeded upon the ground that David 0. Anthony had departed from the state with intent to defraud his creditors, or whether he had so departed to avoid the service of civil process, or whether he had departed from the state all. • ¡Nor .does the application disclose whether the attaching creditor proceeded upon the ground that David C. Anthony kept himself concealed within the state to defraud his creditors, or to avoid the service of civil process; but the application proceeds upon one of these grounds, without specifying which. This is not authorized by the words or policy of the statute, because, 1. The form of the statute plainly indicates that the attaching creditor shall proceed iipon one of the grounds. (2 R. S. 1st ed. p. 3, § 1, subd. 1.) 2. The oath of the attaching creditor to the truth of the application is required. (Id. § 4.) That oath, under so many disjunctives, can be of little security to the debtor. 3. The debtor has the right to contest the truth" of the application. (Id. § 45.) So have certain persons, holding property assigned to them by the debtor. (§ 53.) The issue in such case is made upon the said application of the attaching creditor, and if formed as this is, it would be as vexatious to try as an issue upon a declaration claiming a right to recover upon a note, or a bond, or a judgment, without specifying which. (The People, ex rel. J. & B. Van Valkenburgh, v. The Recorder of Albany, 6 Hill, 429.) IV. The same objection equally applies to both affidavits of the witnesses for the attachment. V. The county judge could not, for he had no right to act in a judicial capacity, until such facts and circumstances were disclosed in the affidavits of two disinterested witnesses, as would properly bring the case before his mind for adjudication. 1. The affidavit must set forth legal evidence of the requisite facts, and not hearsay, or what is equivalent to hearsay only. (Matter of Faulkner, 4 Hill, 601; 18 Wend. 611.) 2. They must “ have a legal tendency to make out a proper ease in all its parts.” (Staples v. Fairchild, 3 Comst. 41, 46; Castellanos v. Jones et al., 1 Selden, 164.) 3. If either of the witnesses wholly omit to state “ any one essential fact, the process will be declared void.” (3 Comst. 46, per Jewett; 7 Barb. 182.) VI. The affidavit of Peter 0. Anthony is essentially defective. Yfhzk facts and circumstances does he put forth? (6 Hill, 314 ; 4 Denio, 118.) VII. The statute requires that the witnesses should be disinterested, and hence the court erred in rejecting the proof offered by the defendant, that Peter 0. and Jacob 0. Anthony were interested witnesses. N. Hill, Jr., for the respondents. I. The officer who issued the attachment, acquired jurisdiction by the papers laid before him; and the plaintiff’s title, therefore, cannot be questioned even by the debtor, much less by the -defendant. (2 R. S. 12, § 62; 4 Hill, 599, 595, 600.) 1. The objections taken to the application, and the affidavit of the creditor verifying it, were clearly unfounded. (2 R. S. 3, § 1, subd. 1, 3, 4; see 4 Hill, 598, 601.) 2. The affidavits of the witnesses verifying the facts and circumstances made a strong case. It is enough, however, that they called for an exercise of the officer’s judgment • on the question. (4 Hill, 598; 20 Wend. 145; 21 id. 316; 4 Denio, 120, Bronson, C. J.) II. The offer to show by evidence aliunde that the witnesses were interested in the manner specified, was properly overruled for the following reasons, among others: 1. The interest evinced by the facts alleged in 'the answer and offered in evidence was not a fixed or disqualifying one, but was contingent, uncertain and remote. Indeed, the offer showed no pecuniary interest of any kind. (4 Denio, 515, and cases cited; see 16 John. 162.) 2. The defendant cannot insist that his subsequent offer related to a different kind of interest than the one alleged in the pleadings, and evinced by the facts previously proposed. If he intended this he should have explained, or made his offer more specific. (10 Mart. Louis. R. 637, 8; 7 Barb. 470; 35 Eng. Com. Law Rep. 403, 4; 6 Barb. 335.) 3. Again, the officer’s jurisdiction depended on whether the papers laid before him imported a compliance with the statute, and this was the only inquiry left open after the appointment of trustees. (2 R. S. 12, 13, § 62; 15 Wend. 372; 4 Hill, 599, 600; see 4 Denio, 120; 19 Eng. Com. Law. Rep. 10; 4 J. B. Moore, 294.) 4. After the appointment of trustees, moreover, the question whether the witnesses were interested became essentially unimportant, for the debtor was then precluded from denying what they have sworn to, viz. that there was in fact good ground for the attachment. (4 Hill, 599, 600.) III. But whatever may have been the rights of the debtor, or those claiming under him, to question the competency of the witnesses, &c., the defendant who claims in hostility to them had no such right. (20 Verm. R. 633, 639, 640.) 1. The provision that the witness shall be disinterested, is for the benefit of the debtor and those claiming under him; and they may waive or renounce it. (2 R. S. 3, § 5; see 16 John. 162, 164, 5; Broom's Leg. Max. 309, 310; 24 Wend. 337, 339; 6 Hill, 47; 5 id. 468, 472.) 2. The plaintiffs show at least a prima facie title as assignees of the debtor by operation of law, and he has also acquiesced in the transfer. The defendant can no more dispute this title than if it had been conferred by the debtor's own act, or his express consent. (2 R. S. 12, 13, § 62; 2 id. 41, § 6; 15 Wend. 372; see 2 Cush. R. 124, 129; 13 Wend. 35, 40.) 3. The plaintiffs’ title having been acquiesced in by the debtor and his creditors, if either should sue the plaintiffs for misconduct as trustees, it would be no defense for them that the witnesses were interested. [MAJORITY — Denio, J.] Denio, J. Notwithstanding the strong language of the provision relating to the effect of the appointment of trustees in proceedings by attachment, I do not entertain any doubt but that a person who is sought to be affected by such an appointment, may raise the question that the officer did not acquire jurisdiction to issue the attachment. It is so upon general principles, and the point has been frequently decided., (2 R. S. 12, § 62; Matter of Hurd, 9 Wend. 465; Staples v. Fairchild, 3 Comst. 41.) It becomes necessary, therefore, to examine the various objections upon which it was insisted, on the trial that the judge acted without jurisdiction. (1.) It is argued, in the first place, that the application was not verified by the affidavit of the creditor, as required by the fourth section of the act. (2 R. S. 3, § 4.) The application was in writing, and contained the several matters required to be shown to entitle the creditor to the remedy sought; but instead of the ordinary jurat, there was an affidavit at length indorsed on the application, setting forth and affirming in detail each of the matters of fact set out in the application, which were repeated in the affidavit. This was clearly sufficient. It was not the address of the petition, or its prayer, which were required to be verified; but the allegations of fact contained in it. An affidavit, which should have stated by way of reference that the several matters alleged in the petition were true, would have been clearly unobjectionablc, and such is the form which the defendant’s counsel considers the proper one. But the mode adopted was the same in substance. The only difference is that the facts were repeated in language, instead of being simply referred to. It cannot be said that the mode adopted does not conform to the statute as truly as the other. The affidavit was a part of the petition, though it did not in terms refer to it. (Roberts v. The Chenango County Mu. Insurance Company, 3 Hill, 501.) (2.) It is objected that the application is in the disjunctive ; that the debtor had departed from the state or was concealed within it, with intent to defraud his creditors; and it is said that the creditor should have stated his case under one or the other aspect, and not in the alternative. The remedy is precisely the same, whether the debtor had absconded or was concealed, no difference whatever existing in the proceedings in the two cases. A case may be so circumstanced that, although it may be conclusively shown that the debtor has left his place of residence in order to defraud his creditors, by depriving them of their remedies, yet it may be impossible even to conjecture whether he has continued his flight beyond the boundaries of the state, or has resorted to some place of concealment in it. The affidavits disclose such a case in the present instance. If the objection is well founded there could be no proceeding under this statute in a case thus circumstanced. The debtor would have only so to conduct his evasion as to make it uncertain which course he had adopted, and he would avoid this remedy. I do not think the statute requires such a construction. The case referred to by the defendant’s counsel implies, that where the circumstances are such that it is doubtful in what particular the defendant’s conduct has brought him within a statute, the creditor has only to state all the facts, without electing which aspect he will adopt. ( The People v. The Recorder of Albany, 6 Hill, 429.) In this case, the facts were laid before the officer, not, it is true, in the application, which is not the paper which should contain them, but in the affidavits of the witnesses, where they are required to be stated. ' The precise course was pursued which the court indicate as the proper one in the case cited. The same considerations apply to the other alternative—whether the debtor's intent was a general one to defraud hi's creditors, or whether it was to avoid the service of civil process. These remarks also answer the objection in this respect which was made to the affidavits of the witnesses. (3.) It is then argued that the affidavits did not state facts sufficient to make a case upon which the officer could lawfully exercise his judgment. It must be conceded that the case made out was not a strong or very conclusive one; but I think the facts legally tended to support the allegation of absconding or concealment, with the intent alleged. The witnesses concur in stating that the debtor had left his home and place of business to go to an adjoining county, for an alleged purpose, which would .not naturally have required a journey of more than two or three days. He had been absent about six weeks, and nothing had been heard of him. The witnesses, who were his clerk and his brother, had each made diligent search and inquiry for him, and the latter had gone to the county where his pretended business lay, and learned that he had gone west, but where or for what purpose is not stated, and, if the witnesses are honest, could not be ascertained. This was a supicious course of conduct for a merchant, and yet it might possibly be explained in an innocent . sense. The weakest point in the case is the connection of this conduct with the alleged motive, the defrauding of his creditors. It is said in both affidavits that he was considerably indebted to the prosecuting creditor and others, and both witnesses add their belief that his object in going off related to his creditors. It moreover appears that the petitioning creditor's debt was pretty large. The most probable explanation would therefore be the one given in the affidavits, and yet every judge, I should think, would have wished to examine these witnesses a little further, and to have ascertained the proportion which his ready means bore to his debts. It must be kept in mind, however, that the law has committed to the county judge, and not to us, the duty of determining as to the cogency of the proof. The criticisms which the defendant’s counsel asks us to indulge in would, if generally applied to such proceedings, render them extremely hazardous, not only to the parties setting them on foot, but to the officers concerned in their execution; for when we determine that a sufficient case was not made for the exercise of the judgment of the officer, we must consider the judge and all the parties trespassers in whatever they do. A liberal indulgence must be extended to these proceedings even upon questions of jurisdiction, if we would not render them a snare rather than a beneficial remedy. I am of opinion that sufficient was stated to confer jurisdiction upon the officer. (Matter of Faulkner, 4 Hill, 598; Johnson v. Moss, 20 Wend. 145; Miller v. Brinkerhoff, 4 Denio, 120.) • (4.) The defendant offered to show that the witnesses were interested. The statute requires that they should be disinterested, (§ 5.) But there was nothing before the officer to show that they were not perfectly disinterested and indifferent, and I concur with what was said upon that question by Jewett, C. J. in Staples v. Fairchild, (3 Comst. 41.) He was of opinion that if nothing appeared to show that they had an interest, they were presumed to be disinterested. The officer obtained jurisdiction by means of the written proof laid before him; and that proof being regular, and nothing appearing to draw in question the qualification of the witnesses, it would form an alarming precedent to hold that in a collateral proceeding proof could be given to contradict the prima facie case appearing before the officer, when the consequence would be, to render the proceedings wholly void. It is essential to the value and usefullness of this remedy that titles derived under it should be sustained, unless their invalidity could be made apparent by an inspection of the papers. The provisions of section sixty-two appear to me to be intended to effect that object. It is declared by that section that the appointment of trustees shall in all cases be “conclusive evidence that the debtor therein named was a concealed, absconding or non-resident debtor within the meaning of the foregoing provisions, and that the said appointment and the proceedings previous thereto were regular.” (2 R. S. 12.) This, as we have seen, does not avoid the consequences of a defect of a jurisdiction on the face of the proceedings ; still it was evidently intended to protect purchasers and-others who have acted upon the faith of the proceedings from all question as to their title, or their acts, arising upon extrinsic evidence. If the title of these trustees can be impeached upon the ground now suggested, the title of a purchaser of real estate from them could be invalidated at any time within the period of limitation, by extrinsic proof that one of the witnesses had a technical interest in the attachment proceeding. This, I think, would be hostile to the main object of the section just referred to. The most plausible ground upon which this objection could be urged, would be to insist that there ought to be affirmative proof before the officer, that the witnesses are disinterested. But the existence of interest is exceptional, and I can see no reason why proof of its absence should be required, which would not apply in, every case where witnesses are required to be disinterested. It was never alleged, while interest was an objection to a witness upon the trial of a cause, that the party to be examined must begin by showing that he was without interest in the issue. Every person not appearing to be connected with the issue is considered disinterested until the contrary appears. I am of opinion that the execution was not well taken. The remaining question is upon the exception to the ruling of the judge, rejecting an inquiry put to the witness Baker, in which he was asked to state what the goods in question would be worth at a legal sale within a limited time. It is unnecessary to say whether the question might not have been competent by way of cross-examination, if the witness had not already answered a similar question. He had testified as to what in his judgment they would have brought upon a sale at auction, which was substantially the-inquiry which was overruled. It was discretionary with the judge whether he would allow it to be repeated in another form of words. The judgment of the suppreme court should be affirmed. Edwards, J., also delivered an opinion in favor of affirmance. Gardiner, Ch. J., and Johnson, SELDEN and Parker, Js., concurred. Allen and Ruggles, Js., did not hear the argument, and took no part in the decision. Judgment affirmed.