Smith v. Weed

Ths release of a lien obtained by the suing out of an attachment, is a good consideration for the promise of a third person to pay the debt of the party proceeded against by such process. The powers of a justice to issue asxattaehment asconferred by the Revised Statutes, are not abridged by the act to abolish imprisonment; on the contrary, they are enlarged and extended to new cases* differing however from the Revised Statutes as to the amount of indebtedness. The only operation of the act of 1831 on the Revised Statutes, is to dispense with the affidavit of witnesses as to the preliminary proof, and to declare the affidavit of the plaintiff sufficient to authorize the issuing of the process.

This was an action of assumpsit, tried at the Herkimer circuit in May, 1837, before the Hon. Jornr Willard, one of the circuit judges. The plaintiff having sued out an attachment, issued by a justice of the peace of the county of Montgomery, against the goods and chattels of one John S. Joslin, by virtue of whice a levy was made upon a quantity of quarried stone as the property of Joslin, the defendant promised that if the stone was the property of Joslin, and the plaintiff would discharge his lien upon the same and discontinue further proceedings upon the attachment, he would pay the debt due to him from Joslin. The amount of Joslin’s indebtedness to the plaintiff, was $131, and the stone Was proved to be his property. The plaintiff alleged on the declaration, that the attachment was sued out under the statute entitled ct Of courts held by justices of the peace.” 2 22. S. 224. The justice who issued the attachment testified that the applieaMm for the process, the affidavit of the applicant, and the attachment were lost, but that the process was issued upon the affidavit of the plaintiff alone, and the ground of the application was, that Joslin had departed from the county where he last resided, with intent to defraud Ms creditors. He further stated that a bond was given with approved sureties, and produced the same, which was in the form prescribed by the Revised Statutes. A copy of the attachment tested on the tenth, and returnable on the nineteenth day of August, 1835, was read in evidence. The defendant moved for a non-suit on the ground of variance between the declaration and proof: that in the declaration, it was alleged that the attachment was issued under the provisions of the Revised Statutes, whereas the proof showed that the • process was issued partly under the Revised Statutes, and partly under the act to abolish imprisonment. Statutes, Sess. of 1831, p. 403, § 33, 34. He also insisted that the attachment was void, because, 1st. If could not legally issue for a demand exceeding $50 °s and 2d. The defendant in the attachment being a non-resident of Montgomery, not more than four days should have intervened between the teste and return of the process j and that the attachment being void, the promise of the defendant was without consideration, and for that cause, the plaintiff was not entitled to recover. The judge overruled the motion for a non-suit, and charged the jury that the plaintiff was entitled to their verdict for the amount of his debt against Joslin. The jury found accordingly, and the defendant now moves to set aside the verdict.