White v. Thielens

Chief Justice Mercur

delivered the opinion of the court,

We have no doubt as to the constitutionality of the Act of 17th March, 1869, relating to the commencement of actions by attachment against fraudulent debtors. It works no denial of a trial by jury for the ascertainment of the alleged indebtedness. If the alleged fraud is not sustained the attachment may be dissolved. Yet if there has been a service on the defendant the suit goes on: Sharpless v. Ziegler, 11 Norris, 467; Biddle v. Black, 3 Out., 380. If just cause existed for the attachment of the property, it is because it would be liable to execution after the judgment is obtained. The debtor gets all the benefit of a trial by jury in determining the question of his indebtedness, and is not thereby deprived of the benefit of the laws exempting property from execution issued on the judgment.

There was no error in the court obtaining, through a Master, the facts bearing on the question of dissolving the attachment.

The evidence covered by the fifth specification of error was clearly admissible: Vincent v. Watson, 6 Harris, 96; Bellas v. Fagely, 7 Id., 273; Torrens v. Campbell, 24 P. F. Smith, 470; Townsend v. Long, 27 Id., 143. In Torrens v. Campbell it was said where the promisor receives money or personal property to be converted into money, in trust for a third party, the action may be sustained in the name of the latter.

This offer was to prove, that the plaintiffs in error received all the business assets of the prior firm, and that the value thereof was $60,000 in excess of all the debts of that firm. That in consideration of this sale, and of the receipt of “the property by the plaintiffs in error, they assumed and agreed to pay all the business debts of their vendor, and that they subsequently wrote to the defendants in error recognizing this note, in suit as a part of their indebtedness. This evidence was directly in the line of proving their liability.

Judgment affirmed.