Renard v. . Hargous

Gardiner, C. J. I concur in the views of the learned judge, who delivered the opinion of the superior court, that after the 31st December, 1829, the only authority of the j udges of that court to issue attachments against non-resident debtors-, was to be deduced from the act making them ex officio supreme court commissioners. As the laws authorizing attachments were then repealed, the authority of all judges and other officers of course ceased, whatever might be the form in which it had been conferred. The Revised Statutes upon the same subject, which became the law upon the first of January, 1830, withheld from the judges of the supreme and of the superior courts, eo nomine, this power, but granted it to supreme court commissioners, and placed the judges of the superior court in that class of officers, by virtue of their office. The office of commissioner was abolished by"the constitution, on the first of July, 1847; the authority in question was then determined, unless it was continued in another form by the act of May 12, 1847, providing for the election of *judges of the superior court. The 7th section of that J act declares “ that the justices of the superior court whose election is provided for by this act, shall have and possess the same powers and perform the same duties, as the justices of that court now have, possess and perform.” (Laws of 1847, 281, § 7.) The argument is, that as the judges'at the passage of the act, “ had and possessed virtute officio, the authority to issue attachments, and were required by the statute subsequently to perform the same duties that they then performed, the power in question was continued after the 1st July, 1847, and was properly exercised in the present case. The act is certainly susceptible of this construction, and *263 as it was then adopted and has been acted upon from that time, I am inclined to acquiesce in it, although as an original question it may well be doubted whether the legislature intended anything more than to continue to the judges elected subsequently, the same powers which their predecessors as such possessed, without reference to those exercised by them as commissioners of the supreme court. It certainly was not designed to continue the office of commissioner, whether held by officers of that name or exercised in virtue of a distinct appointment, for this transcended the power of the legislature. But it was entirely competent for them to refer, by way of description to powers pertaining to the office of commissioner, and bestow them upon another class of officers without specifically enumerating them. This I think we are authorized to say has been done, and there is consequently no error in the judgment of the court below upon this point. The second objection is to the insufficiency of the application for the attachment, because it did not show that the plaintiffs were residents of this state. It describes them as of the city of New-York, and states that the above mentioned applicants or some of them reside in the State of New-York. The affidavit of the witnesses accompanying the application states that the “ above named applicants carry on business *in the city of New York, and one or more of them is .r*9fiA a resident of the State of New York.” It is admitted ^ by the pleadings that one of the plaintiffs was a resident of France when the debt was contracted and when the application was made for the attachment. The statute, under which these proceedings were instituted, provides that the property of a debtor may be attached, whenever not being a resident of the state, “ he is indebted to a creditor residing within this state, although upon a contract • made elsewhere.” (2 R.S., 3, § 1, sub. 2.) The question presented is, whether the separate members of a mercantile firm are each of them creditors upon a debt due to the copartnership, *264 according to the true construction of the act in question. It is true that the affidavits of the witnesses show that the firm transacted business in the city of New-York, but nothing of this kind is mentioned in the application, nor in the statute, as a ground upon which the attachment should issue. If the defendants were non-residents and indebted to a creditor residing within the state, the judge had jurisdiction, and not otherwise, in the case as presented. Each co-partner is in strictness a creditor in a demand due the firm of which he is a member. He is legally and equitably interested in the debt, to which he is entitled as survivor, and is not only a proper but necessary party to a suit for its recovery. He represents the firm and can bind it as well as himself by his contracts, and is liable personally in solido for all the debts of the copartnership. As he would be responsible individually to the defendants to the extent of his property, for a claim growing out of the transaction stated in the record in their favor, there is no good reason why he should not as one of the creditors, in a debt due to himself and others jointly, avail himself of the provisions of a remedial statute, although he may he compelled to include as plaintiffs those who are not entitled to the same privilege. The right to the attachment does not arise from the contract, but is dependent upon the residence of the creditor. In the language of the 3d section “ such ^ application may be made by any creditor resident within this state.” In the matter of Chipman, an absconding debtor (14 John. R., 217), it appeared that the demand was against a copartnership, two of the members of which resided within the state, and the third had absconded. It was held that an attachment might issue for a debt due from the firm against the property of the absentee, although the other partners were residents and capable of being arrested. Although the demand was joint, each partner was considered a debtor, within the meaning of the act, and the same *265 principle would be equally applicable in beha'f of creditors in a debt of the same character. (Crispe v. Perritt, Welles R., 467.) Under the judiciary act of the United States, it has been repeatedly decided by the national court, that the word citizen of a state, in reference to the jurisdiction of that court, was to be construed as embracing all parties, where the interest was j.oint, concerned in that interest, and that each must be competent to sue, or liable to be sued in those courts. (3 Cranch, 267; 1 Wheat., 91; 13 Peters, 519.) The object of that provision, as explained by the United States court, was to afford to aliens and citizens a local court, presumptively free from local influences, in which their cause could be heard and determined. These influences were not to be apprehended where the plaintiffs, or some of them and the defendants were citizens of the same state. A change of forum was consequently unnecessary as the state courts afforded a complete remedy. The law of the United States makes the jurisdiction dependent upon the relation which the parties sustain to the local government; our statute, upon the relation established by the contract, and the residence of any party who sustains that relation. The United States court has never determined that one of two joint creditors is not a creditor; but because they are “ creditors, they must all be citizens of a different state than the defendants to avail *themselves of that jurisdiction.” I am inclined therefore to acquiesce in the decision of the superior L court upon this point, although it is one by no means free from difficulty. Upon the merits of the case I entertain no doubt as to the correctness of the judgment, which should be affirmed. Denio, Hand, Crippen and Dean, JJ., concurred in the foregoing opinion. Marvin, J., delivered an opinion in favor of reversal, on the ground that Justice Sandford had no jurisdiction to issue *266 the attachment, because the papers presented to him on the application did not show that all the creditors applying resided in .this state, or that the indebtedness was upon a contract made within this state. As to the authority of a justice of the superior court to issue an attachment he came to the same conclusion as Gardiner, C. J. Johnson, J., took no part in the decision Judgment affirmed.