Crosby v. Lumberman's Bank

The Vice Chancellor.

This is a creditor’s bill filed to obtain satisfaction of a judgment against a foreign corporation. The bill sets forth that proceedings by attachment were instituted against the Lumberman’s Bank ; and that upon such attachment, certain notes and choses in action of the defendants within this state, were attached by the sheriff. Judgment was obtained, and execution issued and returned unsatisfied; and now this bill is presented in the common form of a creditor’s bill, with a prayer for the usual injunction upon a creditor’s bill."

The Revised Statutes (Vol. 2, page 460, old ed.) provide for proceedings against foreign corporations. The 21st section directs the sheriff to whom the attachment shall be issued, to proceed in all respects in the manner prescribed by law in case of attach-1 v e ments against absent debtors. By referring to that law (2 Rev. Stat. page 4), we find that the sheriff is to levy upon or attach, and take into his custody, all the real and personal estate, books of account, vouchers, and papers relating to the property, debts, credits, and effects of the debtor, &c. In attachments against foreign corporations, the sheriff is of course to do the same thing. In this case he has done it, and, as appears by the bill, has attached certain evidences of debt upon the attachment, which was the original commencement of the proceedings. There is this difference, however, between the law in relation to absent debtors, and the law in relation to foreign corporations. In the former case trustees are to be appointed, and they have the power to collect the choses in action. In the latter case there is no such provision, but the sheriff is directed, in case execution is awarded upon the attachment, to sell so much of the property of such corporation remaining in his hands, as may be necessary to satisfy the same. (Sec. 24, 2 R. S. p. 460.) Now there is no direction here that such execution shall reach choses in action, which the sheriff may have attached. Without such direction, the sheriff cannot sell or assign them. As to them, consequently, though attached, the execution is inoperative. The plaintiff in such suit had, therefore, no mode to reach such assets, without filing a bill in this court, inasmuch as the statute did not provide for the disposing of choses in action in the case of foreign corporations, or for their collection.

This defect is remedied by act of May 14, 1840, Laws of 1840, p. 296, which confers power upon the sheriff under the direction of the officer issuing such attachment, to collect, receive, and take into his possession, all debts, and to commence suits thereon, &c. This statute, it seems to me, is sufficient for the complainant in this case. By virtue of the original attachment, the sheriff has attached certain notes or other evidences of debt. He did this rightfully and lawfully. They are to be presumed now to be in his possession and under his control. The statute of 1840 authorises him to collect them. The bill does not aver that they have.been collected, or paid, or in any other manner disposed of. The bill does not, therefore, show that the complainant has ex-haused his remedy at law; for it does not show what has become of these notes thus attached. He must pursue his remedy upon these notes, before he can have an injunction from this court. If, after all the notes attached by the sheriff, are prosecuted and collected, and there is a deficiency, then possibly he may be entitled to an injunction.

But now, in the present state of the case, the motion for an injunction is denied.