Genin & Lockwood v. Tompkins , 12 Barb. 265 ( 1851 )

By the Court,

King, J.

In these three cases, an appeal has been taken from an order, at special term, allowing amendments to be made in each case, to the attachments issued therein, and upon such amendments being made, denying the motion of the defendant, to set aside such attachments. In their main features, the several cases are similar, and the principal questions involved, the same.

These questions may be reduced to two heads:

1. Those concerning the right to issue any attachment at all.

2. Those concerning the form of the attachments actually issued.

The attachments were, upon the argument, all treated as having been issued on the 29th of January, 1851; though in the papers furnished to us, the attachment in the action of Genin v. Lockwood, bears date the 30th January. 1851. They will be here considered as having actually been issued on the 29th of January.

The first point made by the defendant’s counsel is, that in each of these cases, the claim upon which the suit was commenced was not then due; as the defendant had all the day on which the action was commenced, (the 29th of January,) in which to perform his contract.

It appears, as the result of the affidavits upon which the attachments were granted, of those upon which the motion to discharge was founded, and of the affidavits in opposition to such motion, that in each of the above cases, the plaintiffs had contracted with the defendant, to deliver him stock, for cash on delivery, and that the day for the performance of the contract, on the plaintiffs’ part, was, or might at the defendant’s option, be the 29th of January. That on that day, he called upon the plaintiffs for the stock, which was transferred to him, either upon his assurance that he would pay' cash for it, upon its transfer; or, in expectation that he would do so, according to previous agreement, without such express promise, at the time of delivery. That upon the transfer being made, the several plaintiffs sent to the defendant’s office, for their money, and not succeeding in. them first efforts, repeated their visits; that at or about two o’clock, the defendant left Wall-street, and that shortly before three o’clock, the plaintiffs either received from the defendant’s clerk, or took from the defendant’s drawer, with such clerk’s assent, checks for the respective amounts due them, drawn to their order on the Merchants’ Exchange Bank, not certified, however; and which, when presented, were refused payment for want of funds, the defendant having, on that day, drawn out all his funds in that bank, by checks, payable to himself or others.

It is contended that the taking of these checks suspended the plaintiffs’ right of action until the next day; as the defendant was entitled to the whole of the 29th to meet the same. If these checks were not given to the plaintiffs, but were obtained, as was on the argument contended, by the tortious act of the plaintiffs in seizing upon that which did not belong to them, then, whatever new right of action accrued thereby to the defendant against the plaintiffs, their original right of action upon the contract concerning the stock was unaffected and continued in full force; but, if the checks were in fact given by the defendant’s authority, the case of Bickford v. Maxwell, (6 T. R. 52,) seems applicable. There, a defendant having been arrested, gave the plaintiff a draft for part of the amount due, saying it would be immediately paid, and agreed to settle the balance in a few days ; on which the plaintiff agreed he might be discharged from custody. The draft was dishonored, and upon the same affidavit upon which the first capias issued, the defendant was again arrested on another capias. A motion was made to discharge the defendant from custody. Lord Kenyon said, “In cases of this kind, if the bill, which is given in payment, do not turn out to be productive, it is not that which it purports to be and which the party receiving it expects it to be, and therefore he may consider it as a nullity, and act as if no such bill had been given at all. These questions have frequently arisen at nisi prius, where they have always been determined the same way. I remember one in particular a few years ago, where a rider in the country gave a draft on a person in London, with whom he had no connexion whatever; and it was admitted on all hands, that it ought to be considered as if no bill had been given at all, and that the original debt remained in force.” (See also the conclusion of the opinion of Butter, J. in Bickerdike v. Bollman, 1 T. R. 410.)

Treating the checks then as nullities, what was the condition of the parties ? The plaintiffs had delivered their property to the defendant, upon his then or prior agreement, to pay cash on delivery. Did the defendant, in consequence of such delivery, obtain credit for the whole of the day to pay the cash ?

Upon the argument, the case of Osborn v. Moneare, (3 Wend. 171,) was cited, that an action can not be brought against the maker of a note on the last day of grace, because he has the whole of that day in which to make payment; and that a suit commenced on such last day was premature. So too Chapman v. Lathrop, (6 Cowen, 110,) and Lupin v. Marie, (6 Wend. 77,) were cited in support of the proposition that if the contract called for cash on delivery, a delivery without requiring the cash, was a waiver of the condition.

But the waiver of the condition is in respect to the right of property of the vendor in the goods sold, which, by such delivery. passes to the vendee; but not in respect to the right to demand immediate payment, for that is the consideration of the delivery, and the contract of the vendee. However applicable these cases may be to the question whether the property in the stock vested, on its transfer, in the defendant, they are not applicable to the question of his liability to pay. This question respecting the time which contracting parties have, within which to deliver goods, or pay money, or in other words to tender performance of their respective contracts, was much considered in Startup v. Macdonald, (6 Man. & Gr. 593 ; 46 Eng. Com. Law Rep. 591.) Parke, B. thus sums up the law at pages 623, 624: “ A party who is, by contract, to pay money, or to do a thing transitory, to another, any where on a certain day, has the whole of the day, and if on one of several days, the whole of the day for the performance of his part of the contract; and.until the whole day, or the whole of the last day, has expired, no action will lie against him for the breach of such contract.” The subject is further pursued in reference to the necessity of seeking out the party to whom performance is to be tendered, that sufficient of the day must remain to enable the subject matter tendered to be examined, and other considerations, not necessary here to be referred to. But this case, and all others that I have met with, proceed upon the ground that a day is fixed for the performance of the contract; and the law not in general regarding fractions of a day, considers the party entitled to the whole day for performance.

But such is not the contract appearing in this case; by its terms the acts of delivery and of payment, were to be simultaneous ; the defendant was not to pay on the 29th January, but on the delivery of the stock: andr|it would be an alteration of the contract of the parties, to hold that because the transfer was made without, at the very same instant, receiving the cash, the right to demand the cash was postponed to the next day. It seems clear to me that the defendant, not paying the cash upon the delivery of the stock to him, was immediately liable to an action for his breach of contract. In this view the objections taken to the proceedings are untenable.

The next objection is, that the circumstances of the case, as disclosed upon the affidavits, do not warrant the conclusion that the defendant had departed from the state with intent to defraud his creditors, or to avoid the service of a summons, or kept himself concealed therein, with like intent.

It having been held in this court that, upon a motion to discharge an attachment, founded upon affidavits on the part of the defendant, the plaintiff was at liberty to sustain his attachment, by affidavits in addition to those upon which it was granted, if there was any insufficiency in the original affidavits, which is now supplied, the defect can not now impair the attachment. All the affidavits in the several cases must therefore be considered. The attachments in these various cases differ in the recital of the occasion for which they were issued. Thus, in the case of Genin Lockwood, the recital is, “ that the said Bay Tompkins has departed from the state of New-York with intent to defraud his creditors, or to avoid the service of civil process, or keeps himself concealed therein with the like intent.” In the case of Cammann if Whitehouse, the recital is, “ that the said Bay Tompkins keeps himself concealed in the state of New-York, with the intent to defraud his creditors.” In the ease of Gilbert Sf Johnson, the recital is, “ that the said defendant has absconded from the state for the purpose and with the intent of avoiding the service of a summons, and to defraud the plaintiffs and his other creditors.”

The circumstances under which the defendant was thus charged, as an absconding or concealed debtor, are briefly these: He was a stockbroker, his place of business being in Wall-street, his residence in Twenty-ninth-street. In the early part of the 29th of January, he was engaged in receiving transfers of stock, on contracts maturing that day, to a large amount; in transferring stock, to meet his contracts for delivery, maturing cm that day ; and receiving upon such transfers, considerable sums of money. The transfers made to him were, upon previous agreement, to pay cash on delivery, or statements at the time of transfer, that he would so pay the cash ; when his certified checks were sent for, he postponed delivering them, saying they were not yet certilled; the aggregate of his transactions, on that day, was a large amount; about two o’clock, or shortly before, according to his own account, he suddenly became aware that he must fail: he thereupon, at 2 o’clock, left his office, and Wall-street; an earlier hour than it was usual for him so to do. Communicating to no one, except to Solomon Kipp, where he was going, he went first to the bank in which he kept his account, drew from it all his funds there—in fact somewhat overdrawing his account— and then proceeded to a tavern in Hudson-street. On leaving Wall-street he requested Mr. Kipp to inform Mr. Fowler, his counsel, where he was to be .found. He remained in this tavern from the time he reached it until very nearly, if not quite, midnight ; his whereabouts known only to Charles Kipp, the keeper of the house, Solomon Kipp, a friend of the defendant’s, and to his counsel, Mr. Fowler, and Mr. Van Burén. While there he divided the property which he had with him in cash, into various parcels, and gave them to Solomon Kipp, to be delivered to various parties to whom he was indebted ; and this having been done, he made a general assignment of all the residue of his property to Mr. Fowler for the benefit of his creditors. Whilst he remained there, Mr. Solomon Kipp leaving him, went, accompanied by his wife, to take tea at the defendant’s house, with the latter’s family; found there an officer who, under one of the attachments herein, had taken possession of the personal property in the house, and who had with him a summons to serve on the defendant. To the officer’s inquiry, where the defendant was, Mr. Kipp answered that he did not know. Kipp afterwards returned to the tavern in Hudson-street, where the defendant still was, and late at night accompanied the defendant, first to the house of Mr. Olcill, a friend and neighbor of the defendant’s, whom they woke from his sleep, and thence proceeded to the defendant’s house, where the defendant found the officer in charge in bed, woke him and received from him the summons which he had to serve.

It is evident that there was no departure from the state, for any purpose, or with any intent. It remains to be considered whether there was not a concealment within the state, with intent to defraud his creditors, or to avoid the service of a summons. It is contended that no sufficient concealment existed to warrant the attachment; that the distribution of his property among his creditors was a lawful act; and one from which an intent to defraud creditors could not he inferred; that the service of a summons would not have interfered with any conceivable object of his alledged concealment; whilst an attachment might have so interfered; and that an intent to avoid that which was harmless, could not be inferred, when the result would he, to place in his creditors’ hands a remedy more extensive than that which he is considered as avoiding; and further, that his temporary absence was natural, and sufficiently explained by his desire upon the sudden change of his affairs, to consult his counsel, make a lawful distribution of his property; and avoid the distress of his family, occasioned by the first news of his misfortunes.

But whatever other objects the defendant may have had, and although the result may prove that by avoiding that which was harmless he has afforded to his creditors the opportunity of availing themselves of a remedy which they would not" otherwise have had, it is difficult to avoid the conclusion, from the circumstances of this case, that the defendant concealed himself temporarily ; and that part of the intent of such concealment was to avoid the service of a summons. He was liable to various actions, for debts contracted under circumstances strongly suspicious, unless explained; without explanation to any one, or informing any body, except a personal friend, where -he was going, he left his place of business at an unusual hour, went to an unusual place, and remained there for an unusual time; his place of temporary resort was communicated only to Solomon Kipp, and to his two counsel. Charles Kipp as keeper of the house was almost necessarily acquainted with his presence there. Hone of his family, or acquaintance would from any thing that appears, have thought of looking for him in the place to which he resorted; whilst the defendant was still there, Solomon Kipp went, accompanied by his wife, to the defendant’s house to take tea; found there an officer with a summons against the defendant, and told such officer that he did not know where the defendant was to be found; yet after tea, had no difficulty in finding the defendant, in the same place where he had left him, and remained with him until quite late at night; when he accompanied the defendant to his residence. It is difficult, upon all these circumstances, to arrive at any other conclusion than that the concealment of the defendant was, in part, at least intended to avoid the service of a summons.

It is true, that it might happen to almost any man, to be absent as long as the defendant was, without those connected with him being aware of the place in which he was to be found; but each case must depend upon its own circumstances; and in this instance, the'-circumstances seems to have been sufficient, in the first place, to warrant the issuing of the attachment; on the ground that the defendant had departed from the state, or kept himself concealed therein, with intent to avoid the service of a summons; and upon fuller inquiry, to sustain the attachment, on the ground that the defendant concealed himself within the state, with intent to avoid the service of a summons.

Another question remains to be considered, as to the form of the attachment. It was contended, at the special term, that the warrant of attachment mentioned in the code, was process of the court; and as such, should be tested in the name of a justice of the court, sealed with its seal, signed by a clerk of the court, and subscribed by the attorney issuing it, and be allowed by a justice of the court, and should also have a return day.

The justice before whom the motion came on to be argued at the special term, sustained the objection, except as to the return day; but allowed the' several warrants of attachment to be amended, by adding the proper teste; the seal of the court; the signature of the attorney; and the word, “ allowed,” before the signature of the judge signing the warrant

It is now contended that the warrant of attachment is process for the commencement of an action, and as such, not amendable; and consequently that the judge erred in allowing any amendments to be made.

Upon the argument, the case of Morgan v. Avery, (2 CodRey. 91,) was referred to, as establishing the doctrine that a warrant of attachment was process of the court, issuing by its special order ; but it was stated from the bench, by one of the justices who sat in general term, when that case was heard on appeal, that no such point was raised or decided by the general term in that case; and, undoubtedly, the general practice, both of the judges and of the bar, since the introduction of the code, has been at variance with a construction, requiring warrants of attachment to be under the seal of the court, formally tested, signed by the cleric, and allowed by the justice. They have been in the form of a simple warrant, under the hand of the judge issuing the same.

The term used in the code is, warrant of attachment: a warrant of attachment must be obtained from a judge of the court in Avhich the action is brought, or a county judge. (Code, § 228.) "W arrant is a term well known to the law; originally derived from the criminal law, it has been applied in many civil proceedings ; for instance, in justices’ courts, and in the attachment proceedings existing before the code took effect. It was originally under the hand and seal of the magistrate, by whom it was issued; though sufficient, even at common law, Avithout a seal. In criminal warrants, and in cases of justices’ warrants, seals are now dispensed with by statute, and may well be dispensed AA'ith in attachment warrants ; the seal usually affixed—a mere wafer—adding nothing to the authenticity of the magistrate’s signature, and the warrant, even at common law, being sufficient Avithout a seal, (See 4 Burns’ Justice, tit. Warrant, 4, p. 266; 1 Chit. Crim. Law, 38, 5th Am. ed. (Beekman v. Traver, (20 Wend. 67,) though it decides that the term warrant imports a seal, does not decide that a warrant without seal is insufficient; and this case is cited in support of the dictum in Smith v. Randall, (3 Hill, 495.)

The warrants of attachment, in this case, are in the usual form of all such warrants issued since the code, and are framed according to the usual form of warrants, changing the recitals and command to suit the different purpose for Avhich these issue. They are in the name of the people; directed to the sheriff; recite an application on oath, from which the facts appear, which under the statute authorize the Avarrant; they command the sheriff to attach the property, <fcc. and to proceed thereon according to laAV ; the amount to be attached is limited under the practice adopted in this district before the late amendment to the code requiring such limitation ; and the warrant is dated at the place Avhere issued, and signed by the judge issuing the same.

Nothing is said in the statute Avhich indicates the necessity of a seal of the court, or of a cleric’s signature. It is simply the Avritten order of the judge issued upon, and as a judicial determination from the facts presented to him, that the case is one in Avhich an attachment should be granted. It is one of the provisional remedies Avhich the court is authorized to extend to suitors, and that in the simplest manner, and upon application to a judge at chambers ; and under sections 174 and 176 amendable, if amendment be needed, to conform it to the provisions of the code.

It seems to me that the intention of the legislature is so clearly indicated, that the Avarrant of the judge alone should be sufficient, as not to authorize the court to affix other requisitions of formal teste, signature of clerk, and seal. The signature of the attorney to the warrant should, however, he required, from motives of convenience which must be obvious to all.

So far as the return day is concerned, none is usually contained in warrants; in criminal cases, the command is to bring the party forthwith before the magistrate, to be dealt with according to law; but the statute would require this upon arrest, even if omitted in the warrant. In these warrants of attachment the command is to seize the property and proceed thereon according to law; and the law has pointed out what, upon seizure, is the officer’s duty. (Code, § 232.)

It seems to me, therefore, that the amendments authorized to be made to the warrants of attachment were unnecessary, and that in their original condition the warrants were, as to form, sufficient, although the attorney’s signature should, properly, have been affixed.

[New-York General Term, December 1, 1851.

The conclusion is, that the order made at special term, in each of the above cases, should he affirmed, with costs.

Edmonds, Mitchell and King, Justices.]