Van Kirk v. Wilds

By the Court, Harris, J. The attachments by virtue of which the defendant justifies the taking of the property, are sought to be sustained under the 33d section of the act to abolish imprisonment for debt, which authorizes a defendant, not liable to arrest, to be proceeded against by summons or attachment, when not a resident of the county. Previous to the decision in Taylor v. Heath, (4 Denio, 592,) it had been supposed that such an attachment might be issued without any affidavit. The learned judge so held, upon the trial of this cause, and his decision is sustained by authority. (Clark v. Luce, 15 Wend. 479. Bates v. Relyea, 23 Id. 336. Van Etten v. Hurst, 6 Hill, 311.) But in Taylor v. Heath, Mr. Justice Beardsley, after a very diligent examination of the statute, came to the conclusion that the requirement of the revised statutes, that the applicant for an attachment, or his -agent, shall make an affidavit, proving the grounds on which the application is founded, is not repealed either expressly or by implication, by the act to abolish imprisonment for debt, and that before an attachment can issue, even against a non-resident, under the 33d section of the last mentioned act, an affidavit is necessary. His associates concurred with Judge Beardsley so far as to hold that before an attachment can be issued against a non-resident, the justice must have evidence that he is in fact a non-resident; so that now it may be regarded as settled, practically at least, that in all cases, not excepting that of a non-resident, there must be an affidavit. But while the judge was wrong in holding that no affidavit was necessary, I think he did not err in receiving the evidence. The affidavits upon which the attachments were granted, as well as all the other proceedings before the justice, are exceedingly [525] informal; but I think they contain enough to meet the requirements of the statute. Among other things, quite unnecessary, they do state that the plaintiff in the proceeding has a debt against the defendants to a specified amount, arising upon contract, and that the defendants are non-residents of the county. This, I think, was enough to warrant the justice in issuing the attachments. These, though they omit some recitals usually found in such process, and contain others which ought not to be there, are, I think, sufficient to justify the defendant in taking the property. ¡Nor do I think the objection to the constable’s return was well taken. The statute requires that upon the seizure of the property, the officer shall immediately make an inventory, and if he can be found in the county, serve a copy of the attachment and inventory, certified by him, upon the defendant personally. Here the constable returns that he delivered to each of the defendants, personally, a copy of the attachment and inventory. Such a return is, I think, prima facie, sufficient, without stating that the copies served were certified by the officer. Some things may be presumed in favor of a proper discharge of duty by a public officer. When he returns that he has made personal service of process, he is not required to state what particularly he did to constitute such service. It will be presumed that he did all that the law requires. If it was that he should read the process to the defendant, it may be presumed that he read it. If the larv required that he should deliver a copy, it may be presumed that the copy was delivered; and when it is required that the copy delivered shall be certified by him, it may be presumed that it was so done. In such cases it must be made affirmatively to appear, that the requirements of law have not been complied with, before advantage can be taken of a defect in the mode of service. All that can be said in this case is, that it does not affirmatively appear whether the copy of the attachment and inventory delivered to the defendants, severally, was certified by the constable to be a copy or not. It may have been so certified, and it may not. Under these circumstances, as the copies were personally delivered, and no objection was [526] taken to the mode of service by the defendants, it is to be presumed that the officer served them in the manner prescribed by law. If, as the plaintiff’s counsel seems to have supposed, the evidence of the confession of the judgments by Richard C. and Job Van Kirk, on the day the attachments were issued, had been offered for the purpose of justifying the taking of the property by the defendant, I should be inclined to think the objection to the evidence well taken. But I think the evidence was admissible upon another ground. The defendant alledged, and sought to prove, that the transfer of the property in question by Richard C. and Job Van Kirk to their brother, the plaintiff, was fraudulent as against creditors. For the purpose of giving character to the transaction, and enabling the jury to determine the motives which actuated the parties, it is allowable in such cases to prove other transactions in which the parties were engaged about the same time. Thus, when the vendor of goods seeks to avoid the sale on account of the alledged fraud of the vendee, it is competent to prove other frauds practiced upon other persons by the same vendee, about the same time. For the same reason I think it was competent to prove the confession of these judgments, and also the conveyance executed by Richard C. Van Kirk to the plaintiff. It appears by the returns of the defendant, that he only seized four mules and halters upon the attachments, and the plaintiff now claims that he was entitled to recover for the value of the residue of the property. The omission to include the wagon and harness and the bags and feed in the return, was undoubtedly a mere inadvertence — one, too, which seems to have escaped the notice of the plaintiff himself upon the trial. It is evident that the trial proceeded throughout, upon the assumption that all the property had been taken under the attachments and sold to satisfy the demands of the plaintiffs in the attachments. There can be no doubt that this was in fact the case, and it is now too late to raise the objection for the first time, that the return of the officer does not embrace all the property attached. The only other point made by the plaintiff is, that the court [527] erred in charging the jury. This may be so, though I have not perceived the error, nor has the plaintiff’s counsel undertaken to point it out. The plaintiff’s counsel has only taken a general exception to the charge of the judge. Such an exception is of no avail, unless the entire charge is erroneous. That is not pretended in this case. I am of opinion, therefore, that the motion for a new trial should be denied. [Albany General Term, September 1, 1851. Harris, Watson and Wright, Justices.]