The New-York & Erie Bank agt. Robert Codd.

ment was issued, and the court ordered a reference, to determine the facts in controversy.

In the case of Morgan agt. Avery, decided in January, 1850, (7 B. S. C. R. 656,) an attachment had been issued upon an affidavit, alleging that the defendant had departed from the state with intent to defraud his creditors; and I infer from the opinion of Justice EDMONDS, at page 662, that there was also an allegation of an intent to avoid the service of a summons.

Two questions were raised on the motion at special term to dissolve the attachment: first, whether the defendant could be relieved on motion; and, second, whether the plaintiff could read supplementary affidavits for the purpose of strengthening the case made by his original affidavits.

Justice EDMONDS, at the special term, held that the attachment could not be treated as an order, and that, therefore, the remedy by appeal, given by § 349 of the Code, was not applicable, and that the defendant's only remedy was by motion.

Upon the other question, the learned justice held, that the supplementary affidavits might be read by the plaintiff, "not merely in answer to those on the part of the defendant, but in support of the original application for the attachment;" and added, "if such application was originally defective, that may influence the question of costs, but need not affect the great question, whether, by reason of defendant's absconding, the plaintiffs are entitled to the provisional remedy of an attachment."

In the case of Conkling agt. Dutcher, decided in July, 1850, by the general term in the 6th district, (5 How. Pr. R. 386,) an attachment had been issued by a county judge, which defendant moved, on affidavits at the special term, to vacate on the merits. The motion was denied by the special term, and the defendant appealed. The court, SHANKLAND, J., delivering the opinion, held, that the affidavits upon which the county judge acted were sufficient to confer jurisdiction upon him to act in the premises. That this order could be reviewed on the merits only on appeal to the general term, under § 349, and that the special term could entertain a motion to set it aside.

The New-York & Erie Bank agt. Robert Codd.

only for irregularity. It was, therefore, held, that the order of the special term, denying the motion to vacate the attachment, was not appealable. The learned justice proceeds to say, "The defendant, against whom an attachment has issued, has two modes of getting rid of it, where it has been improvidently granted, first by applying to the judge to vacate his own order, (§ 324,) and, second, by appeal to the general term, under § 349, sub. 1. But in neither mode can opposing affidavits be read by the defendant, nor can additional affidavits be used by the plaintiff."

The case of St. Arnaut agt. De Brixeedon, decided in January, 1851, by the superior court of the city of New-York, (3 Sand. S. C. R. 703,) was an appeal from an order at chambers, denying a motion to discharge an attachment. The question was there raised as to the right of the plaintiff to introduce supplemental affidavits on such a motion, in support of the original affidavits on which the warrant was issued.

The court cited the case of Morgan agt. Avery with approbation, and decided that the affidavits were properly received.

The case of Genin agt. Tompkins, decided in Dec., 1851, by the general term, in the first district, (12 Barb. S. C. R. 265,) was an appeal to disprove the facts upon which the attachment was issued. There was no question made in the case as to the sufficiency of the affidavit upon which the warrant was allowed; and Justice HARRIS held, that counter affidavits could not be read on the motion. The cases of Morgan agt. Avery, and Conklin agt. Dutcher, were cited, and the former case was regarded as overruled by the latter.

In the case of the Bank of Lansingburgh agt. M'Kie, decided in December, 1852, (7 How. Pr. R. 360,) a motion was made, at special term, to vacate an attachment granted by a county judge. There appears to have been no question in that case as to the sufficiency of the affidavit upon which the warrant was issued, and the only question was whether, when an attachment had been issued on sufficient affidavits, a motion could be made, at special term, on new affidavits, to vacate the warrant, and Justice HARRIS again held, upon a review of the

The New-York & Erie Bank agt. Robert Codd.

cases of Morgan agt. Avery, and Conklin agt. Dutcher that counter affidavits could not be read on that motion.

In the case of Granger agt. Schwartz, decided in the superior court of the city of New-York in October, 1853, an attachment had been issued against two defendants, as non-residents, upon an affidavit showing such non-residence, and that neither of the defendants had been served with the summons.

The plaintiff sought to sustain the attachment by affidavits, showing that the resident defendant had concealed himself, &c. The court held, first, that as the affidavit upon which the attachment was issued showed both defendants to be non-residents, and that neither of them had been served with the summons, the court had no jurisdiction of the action, and consequently that the judge had no jurisdiction to grant the warrant ; and, second, that where an attachment has been issued upon papers which show upon their face that it is void, a motion to vacate it cannot be defeated by showing that other grounds for it exist, different from those shown in the original papers.

The last case is an express authority in favor of a motion at special term to set aside an attachment, or any other order that has been irregularly or illegally issued; or, in other words, an order issued upon affidavits which do not allege sufficient facts to give the officer granting it jurisdiction to act in the matter.

The same thing was decided in Blake agt. Locy, (6 How. 108,) and Lindsay agt. Sherman, (1 C. R. N. S. 25,) and is assumed by the learned justices who delivered the opinion in Conklin agt. Dutcher and the Bank of Lansingburgh agt. M'Kie. But it was held in the last two cases, and in White agt. Featherstonhaugh, that it was for irregularity only, that the order could be vacated on such a motion. And here, I apprehend, is the only point upon which the authority of the three cases last mentioned is in conflict with that of Morgan agt. Avery, and Genin agt. Tompkins, in which cases, as we have seen, motions to vacate the attachment on the merits were entertained at special

term.

Justice SHANKLAND, in Conklin agt. Dutcher, and Justice HARRIS, in the Bank of Lansingburgh agt. M'Kie, agree in the VOL. XI.

15

The New-York & Erie Bank agt. Robert Codd.

proposition, that an attachment may be vacated on the ground that it has been improvidently issued, in two ways: first, by an application to the judge who issued it to vacate his own order; and, second, by an appeal from the order to the general term. The Code plainly provides for both of these remedies. (§§ 324 and 349.) But the question as to what papers might be used upon a direct application to vacate an attachment on the merits, to the judge who issued it, was not involved in either of those cases; nor in the case of White agt. Featherstonhaugh; and for this reason neither of those cases can be regarded as an authority on this point.

Justice HARRIS, in the Bank of Lansingburgh agt. M‘Kie, in speaking of the practice in such cases, says, "The order having been made out of court, and without notice, the adverse party is at liberty to apply to the judge, who made the order, to vacate or modify it. This application may be founded upon the papers upon which the judge acted when he made the order, or upon new papers. The decision upon this application is final, except in such cases as are within the provisions of § 349. In those cases, of course, a review may be had by an appeal to the general term." The learned justice proceeds to say, that, "instead of applying to the judge who made the order, the party may move, at special term, to vacate the order; but that, on such motion, new papers cannot be read, for the reason that the inquiry on that motion is limited to the question, whether, upon the facts before the judge, he was authorized to make the order."

It is not necessary, on this motion, to settle this last question of practice, upon which the authorities above cited are in conflict. The question now is, can counter affidavits be read on a motion to vacate an attachment made before the officer who granted it?

I am of opinion, that the proposition that they can is sustainable, both upon principle and authority. We have seen that the general term of this court, in the first district, has twice decided that such affidavits may be read on motions to vacate attachments; that the practice of receiving such affidavits has

The New-York & Erie Bank agt. Robert Codd.

received the deliberate sanction of all the justices of the superior court of the city of New-York, in two cases decided in that court, that the point now in controversy was not involved in either of the three cases where such affidavits were rejected, in all of which the question arose on motions made, in the first instance, or appeals from orders entered, at special term; and that this practice is conceded to be proper, on such a motion as this, by Justice HARRIS in the case of the Bank of Lansingburgh agt. M'Kie.

I think it must be so held upon principle. The attachment authorized by the Code is wholly unlike any remedy of that nature heretofore known to the law. It is an order in the action in the nature of process, and, like all orders of that kind, must, from the nature and necessity of the case, be subject to the inherent power which every court of general jurisdiction. exercises by virtue of immemorial usage and prescriptive right over its process and orders, until that power is abrogated by express legislation. Sections 240 and 241 of the Code, provide for an application to the officer who has issued an attachment to discharge the same. Section 241 provides that it shall be discharged on the execution of an undertaking to pay the judgment that may be recovered.

This remedy is appropriate in a case where an attachment has been properly issued. But it affords no relief adapted to a case where an attachment has been improperly issued, and could never have been intended as a remedy in such cases. By the provisions of the first article of title 1 of chapter 5 of the 2d part of the Revised Statutes, entitled, "Of Attachments against Absconding, Concealed, and Non-resident Debtors," a party against whom an attachment has been issued, as an absconding, concealed, or non-resident debtor, may, at any time before the appointment of trustees, present a petition, verified by his oath, to the officer who issued the warrant, controverting the facts upon which it was issued, and praying that the allegations of the petition may be determined by the supreme court, &c., (2 R. S., p. 10, §§ 43, 44,) and thereupon, and on receiving from such debtor the security required by sec