The Attachment Law of New-York.

WHENEVER any person, other than those who may

be liable to be declared bankrupts under the laws of the United States,* being indebted within this state, either secretly departs from or keeps concealed within it, any one creditor or joint company to whom he is indebted in the sum of one hundred dollars or upwards, or any two to whom he is indebted in the sum of one hundred and fifty dollars or upwards, or any three to whom he is indebted in the sum of two hundred dollars or upwards,† over and above all discounts, may apply to a judge of the supreme court, and make oath or affirmation in writing, that the debtor is indebted in one of the sums before mentioned, or in any sum exceeding the same, over and above all discounts, and that he or they do verily believe that he is departed this state or concealed within it, with intent to defraud his creditors, or to avoid being arrested by the ordinary process of law. The departure or concealment must be proved to the satisfaction of the judge by two witnesses. On such proof, the judge issues his warrant to the sheriff of any one or more of the cities and counties, commanding him to attach the estate real and personal of the debtor within his county, with all books of account, vouchers and papers relating thereto; which warrant the sheriff shall execute, and with the assistance of two substantial freeholders make a true inventory of the estate, and return the same, signed by himself and the two freeholders, to the judge who issued the warrant.

* There is no such law now in force.

For all demands arising ex contractu, though the amount be unliquidated, an attachment may be issued against the property of absconding and absent debtors under this act. 3. N. Y. T. R. 323.

Under this act the supreme court will inquire into the foundation of the demand of the plaintiff, and if it appear not to be such as to warrant the issuing an attachment, will order a supersedeas. 3 N. Y. T. R. 257.

The judge immediately thereafter orders notice to be given in two public newspapers of this state, one of which to be printed in the city of New-York, and the other by the printer to the state, that on application he had directed all the estate of such debtor to be seized, and that unless he return and discharge his debts within three months after such notice, the estate will be sold for the payment of his debts.

In case any sheriff seizes perishable goods, the judge who issued the warrant may, in his discretion, order such goods. to be sold, and the monies arising therefrom to be paid to the trustees to be appointed in pursuance of the act.

If a sheriff seizes any goods or effects which are claimed by a person as his property, such sheriff may summon and swear a jury to try the right; and if the jury by inquisition find it to be in the person so claiming, or in any other person than the debtor, the sheriff must deliver the goods or effects to the person, &c. and he is not liable to prosecution for such seizure. All reasonable charges arising by the sale of such perishable goods or by the inquest, if it find the property not to be in the debtor, are allowed and certified by the judge issuing the warrant and paid out of the estate of the debtor; but if the property of the goods or effects be found in the debtor, then all charges arising by such claim and inquisition, or either of them, must be paid by the person who made the claim, or procured or occasioned the inquisition.

If a person indebted to the debtor, or having the possession of any of his property, after the first public notice pays any debt or delivers such property to the debtor, his attorney or assigns, he is deemed to have done it fraudulently, and is answerable for the value to the trustees. If sued for the same, after the first public notice by the debtor, he may plead the general issue and give this act and the special matter in evidence.

All sales of the estate real or personal of the debtor, and all assignments of any bill, note or other chose in action belonging to him, made after the first public notice, are null and void.

If the debtor, before the appointment of trustees, by himself or attorney, by petition to the judge, offer to prove to the court of which he is a judge in open court, that he is a resident within this state and was not within thirty days before issuing the warrant nor at any time after, nor is then absconding or concealing, and pray that he may be heard at the next term of the court, and if, at the same time, he execute and deliver to the creditor or creditors who procured the warrant a bond with sufficient security, to be approved of by the judge, in the sum of one hundred dollars, with a condition that the debtor shall prove to such court at the then next term the facts offered in the petition to be proved, and which are to be stated in the condition, the judge in such case reports his proceedings to the court at the next term. The court is authorized to compel the parties and their witnesses to come in, and to hear the proofs and allegations in a summary way, and to determine whether the matters in the petition have been satisfactorily proved. If the court determine that they have, they then grant a supersedeas to such warrant or warrants, and the debtor recovers his costs, to be taxed by the court in open court, of the creditor or creditors who procured the warrant or warrants. But if the court determine the mat. ters in the petition not satisfactorily proved, then the obligee or obligees in the bond may recover the penalty with costs, the one moiety of such penalty to the use of the obligee or his legal representatives, and the other to be paid to the trustees, to be by them distributed in like manner as other monies which may come to their hands as trustees.

If the debtor do not return within three months after such notice, and satisfy his creditors, not having presented the petition or given the bond or having done the same, and the court shall have adjudged the matters in such petition not satisfactorily proved, and shall have refused to grant a supersedeas, in either of these cases, the judge who issued the warrant, or any other judge of the same court, appoints three or more persons to be trustees for all the creditors of such debtor; which trustees shall before they proceed, take an oath

or affirmation, to be administered by the judge appointing them, well and truly to execute the trust by that appointment reposed in them, according to the best of their skill and understanding.

The trustees or any two of them, as soon as may be thereafter, give notice in two of the newspapers printed in this state, one of which to be printed in the city of New-York, and the other by the printer to the state, of their appointment, and require all persons indebted to the debtor, by a day certain to be mentioned in the notice, to pay all debts and sums of money which they owe to the debtor, and deliver all his property which they have in possession to them; and also to desire all creditors, by a day to be mentioned in the notice, to deliver to them or one of them, their respective demands.

Each of the trustees may take into their hands all the estate of the debtor, whether attached or afterwards discovered, and all books, vouchers and papers relating to the same. The trustees, from their appointment, are vested with all the estate of the debtor, and are capable to sue for it. All debts and things in action, due or belonging to the debtor, and all the estate attached by the sheriff, who took the same, must be delivered over to the trustees, and the trustees or any two of them, must sell at public vendue, after fourteen days' previous notice of the time and place, all the estate real and personal of the debtor as shall come to their hands, and execute deeds and bills of sale.

If a person indebted to the debtor, or having the custody of property belonging to him, do not deliver a just account thereof to the trustees, or one of them, by the day appointed, he forfeits double the sum of the debt, or value of the property; to be recovered by action by the trustees. The court before whom such action shall be brought, is empowered to compel the person to appear and be examined on oath touching the premises, and to commit such person to prison if he refuse to be examined; or being examined, refuse to answer satisfactorily.

The trustees may apply to any justice of the peace for a warrant, commanding the debtor and every other person known or suspected to detain any part of his estate, or to be indebted to it, or to know any thing concerning the concealment or embezzlement thereof, to be brought before him at such place as he and the trustees shall appoint, the justice, or in his absence, any other justice to be requested by the trus tees, shall be present. At this meeting either the justice or the trustees, or both, may examine on oath to be administered by the justice, every person so brought before them, touching all matters relative to the debtor, his dealings, and his estate, and reduce the examination to writing, which the person is required to sign. If he refuse to be sworn or to answer, or shall not answer to the satisfaction of the justice, all lawful questions to be put by the justice and trustees, or the major part of them present, as well by word of mouth as by interrogatories in writing, or shall refuse to sign the examination, not having any reasonable objection either to the wording thereof or otherwise, to be allowed by the justice, the justice may commit him to prison, there to remain without bail, until he submits. The warrant of commitment must specify the particular default; and if it be in not answering a question, that question must be specified in the warrant: if he bring a habeas corpus, to be discharged from imprisonment, and on the return of it, there appear any insufficiency in the form of the warrant, the court or judge before whom he is brought, recommits him, unless it be made to appear that he hath answered all lawful questions put to him, or had sufficient reason for refusing to sign the examination; and if he be wilfully suffered to escape, the gaoler forfeits to the trustees a sum equal to what is owing to the creditors; Provided, it does not exceed two thousand five hundred dollars, to be sued for by them and distributed as herein after directed.

The survivor of the trustees has all the powers given to the trustees; and if any person, so to be examined, swears or affirms falsely, he is liable to the penalties of perjury.