Bennett vs. The Hartford Fire Insurance Company, 19 Wend. 46

By the Court, Cowen, J. It is objected that the defendants have no right to appear, even for the purposes of this motion, except by leave of the court first obtained, according to the statute “of proceedings by and against corporations in courts of law, 2 R. S. 2d ed. 373, 376, § 27. The appearance contemplated by that

section is for the purposes of a defence on the merits ; not to set aside the proceedings for irregularity. For the latter purpose the defendants may appear of course. Then are the proceedings irregular ? An objection is made to the form of the writ and the mode of issuing it. The statute cited, p. 375, § 15, gives to a resident of this state the right to commence a suit in the supreme court against a foreign corporation by attachment.

Section 16, declares, that the court, or any judge thereof in vacation, and any officer authorized to perform the duties of such judge in vacation, may, on the application of the plaintiff, issue such attachment to the sheriff of the county in which any property of such corporation may be, commanding him to attach and safely keep all the estate, real and personal of such corporation. Sections 17, 18, 19 and 20 provide for the proof and bond on which the application is to be founded.

Section 21 directs the sheriff to proceed thereon in all respects as provided by law in case of absconding or absent debtors; he is to make and return an inventory, and keep the property, or proceeds if sold, to answer the judgment in the suit so commenced. Sections 22, 23 and 24 provide for the sale and disposition of attached vessels and perishable property.

In such case the same proceed ings are again directed as in case of absconding or absent debtors; but the two latter sections- make special provision as to the manner in which the avails of perishable property or vessels sold, or any bond to be taken upon their liberation, shall be appropriated to satisfy such judgment as shall be obtained, and directs the sheriff when to sell other property to pay the balance. By

section 25, if the plaintiff be non-suited, or discontinue, or judgment pass against him, the sheriff is to deliver the property attached to the defendants, in the same manner and on the same terms as are prescribed in the case of an absent debtor being discharged.

Section 26 prescribes the penalty if any such suit be brought vexatiously, and

section 27 that at any time before the plaintiff in such suit shall have lost a trial, and afterwards on good cause shown, the court may allow the corporation to appear and defend on terms. . Sections 28 and 29 provide that the attachment may be discharged on giving security to pay the judgment.

Section 80 provides that where moie than one attachment shall, during the same term or same vacation, issue against the defendants, the court shall, after judgment, distribute the proceeds of the property raleably among the plaintiffs. Upon this statute the plaintiff framed his attachment with a teste and.return day, the same as any other process to compel appearance, and affixed the names of our clerks.

The frequent allusion to the statute concerning absent and absconding debtors led the defendant’s counsel to suppose that the form of the writ should have followed that act, being signed by and made returnable before the officer by whom it issueg. See the form in Yates’ Pl. 649, 50. In this he is clearly wrong. The statute evidently means to provide for an attachment, to come in place of the summons against a domestic corporation, tested and returnable in the same manner according to the directions of the 4th section.

The process by attachment is, like the summons, for the purpose of commencing a suit, which on its return shall proceed to trial and judgment in the ordinary way; and all the proceedings, are to be in the usual form, except in some things so nearly resembling the like steps against absconding and absent debtors, that the statute relative to them was, on these heads, for brevity adopted—we have already noticed in what respects. It was regular, as has been done in this instance, to enter the defendant’s appearance and take a default in the usual way, (section 6,) provided the writ was regularly issued.

But I think the writ was not issued by the proper officer. It is a new process unknown to the common law, a mere creature of the statute, and can have no legal existence unless the forms of creation prescribed by the statute are strictly pursued.

We have seen that by the 16th section, “ the court, or any judge thereof in vacation, and any officer authorized to perform the duties of such judge, in vacation, may, on the application of such plaintiff, issue such attachment.” By the 17th section, the application is to be in writing, with affidavits of the debt or damages claimed ; and by the 18th and 19th the original security or accounts shall be produced, or copies annexed to the affidavit, or, if the suit be for damages, the facts and circumstances are to be shown by at least one disinterested witness.

By the 20th section, a bond is to be taken to the defendant, with sureties to be approved by the officer to whom the application is made, conditioned to pay all costs, Sec. which, by the officer receiving the same, shall be filed with the clerk. The statute is worded in such a way as not verbally to harmonize with proceedings in analogous cases, and not in all instances with its own provisions. The court or officer is to issue instead of allow the writ, and the officer, not the court or officer, is to approve the sureties and file the bond. The meaning, however, is sufficiently plain.

The issuing of the writ is evidently intended to be synonymous with the granting or allowing it in analogous cases. In court, this is to be done on motion, and by rule ; while the officer in vacation may endorse his allowance. The same distinction of form must prevail as to the approval of the bond. The court speaks by rule, the officer by his allocatur. The allowance, therefore, was well enough in the instance before us; but unfor-, tunately, it was allowed by a commissioner while we were in actual session at a regular term (July) in the city of Utica.

I have already adverted to the terms of the statute, which prescribes the court and officers who may allow the writ. The court is to be moved if in session, I should say if in actual session, for then only is there a court which can allow the writ. Next any judge or commissioner in vacation ; that is, in default of there being any court to which you can apply, you may go to a judge, or which is the same thing, his substitute, a commissioner. There are, in short, only two alternative tribunals, limited in their action as to time; the court or a judge in vacation. Here is neither.

There is a judge (commissioner) but not in vacation. He has acted in term time. I do not read the words “ in vacation,” in the last clause, as merely qualifying the person who is to act. The statute would not have used the words "in vacation,” had it meant a simple alternative as to the officers who were to allow. It would then have run thus: “ The court or a judge, or a commissioner to perform the duties of a judge,” may issue the writ. There is no such officer as a commissioner to perform the duties of a judge in vacation.

The title stands independent of the last words ; and to my apprehension they are plainly restrictive as to the time when and when only the judge or commissioner may act. The writ and all subsequent proceedings must, therefore, be set aside, with costs.