Kelly v. McCormick

It was not necessary to allege, in the complaint, the issuing and return of an execution unsatisfied, nor that an order had been made for the attachment. The averment of the recovery of the judgment, and that such proceedings were thereupon had, supplementary to execution, that the court issued the attachment under which the instrument sued upon was executed, was sufficient. (See Gilbert v. Cameron, 17 Wend. 59.)

The attachment was not void, even if it was improperly made returnable “ before one of the judges of the court” at chambers. It was voidable only; for the defect, if it be one, was amendable. Since the statute, 2 R. S. 519, §§ 1 and 3, 3d ed., any process, upon which a defendant has been arrested, may be amended by the court from which it issued, except as to the return day. Even as the law stood before the statute, the alleged defect would not have rendered the process void, but it would have been amendable. (McConkey v. Glenn, 1 Cowen, 141; Monell v. Waggoner, 5 Johns. 433.) If the attachment had been absolutely void, as if it had been issued without authority, or made returnable upon a Sunday, the plaintiff might avail himself of the objection, in an action upon the instrument; but where the defect in the process is one (conceding that the attachment should have been issued by the court and made returnable before it) which the court can amend, it can never be made the subject matter of a plea, the proper and only remedy being a motion to the court to set it aside. (Tanker v. Heath, 15 Wend. 301.) The cases to which the defendant refers are all cases in special proceedings, where the officer had no authority to take a bond or other instrument as security, not having acquired jurisdiction of the subject matter, as in Germond v. People, (1 Hill, 344,) and in the Matter of Faulkener, (4 Ib. *510598,) which were proceedings under the act authorizing attachments against non-residents, or Brodhead v. McConnell, (3 Barb. 176,) which was a bond given to prevent a commitment under the non-imprisonment act in a proceeding in which the justice had acquired no jurisdiction. But there is nothing in the pleadings here, nor in the case, to show that Judge Woodruff had no authority to issue an attachment against- the debtor. These cases would be in point, if he was ■ exercising a special jurisdiction under a statute, without having, by a due course of proceeding, acquired it. The complaint avers the recovery of a judgment, and such proceedings supplementary to execution under it, that the court didy issued the attachment which is set forth. If that was made returnable before one of the judges at chambers in- . stead of before the court, that does not show that the judge, by whose direction it was allowed, had no authority to grant it.

It is not necessary that we should pass upon the question, whether the attachment should be made returnable before •the court or before the judge by whom it was granted. It is equally unimportant as respects this defence, whether the attachment is to be regarded and treated as process of the court or merely as a- direction given by the judge to the sheriff, in the return of a warrant, commanding him to bring the defendant before him; for if it is process of the court, then, as has been shown, it is simply voidable, and no bar to the action ; and if it is not, then it was properly made returnable before one of the judges of the court at chambers, as, in this court, any proceedings commenced before one judge may be continued before another. (Laws of 1840, p. 222.)

In respect to the last point raised in the case, I very much doubt whether the taking, by the sheriff, of an instrument as security for the appearance of the defendant, in the form of a bond, requiring nothing but the attaching of a seal to make it one, is, within the meaning of the statute, (2 R. S. 384, § 66, 3d ed.,) an instrument taken colore officii. (Burrill v. Acker, 21 Wend. 607; 23 Ib. 608; Webber v. Blunt, 19 *511Wend. 188; People v. Meighan, 1 Hill, 298; Mott v. Robbins Ib. 21.) The term is always taken in malam partem. “ Color of office,” says Tomlin, “ is where an act is evilly done, by the countenance of an office, and is always taken in the worst sense, being grounded upon corruption, to which the office is as a mere shadow or color.” But whether, as respects the sheriff, it was within the prohibition of the statute or not, is not material. The plaintiff, for whose benefit it was taken, has ratified and adopted the act of the sheriff. He has become the sheriff’s assignee, and the instrument is, at all events, available to him. (Winter v. Kinney, 1 Comst. 365 ; Armstrong v. Gowan, 6 Cowen, 365.) The motion for a new trial should be denied.

Judgment affirmed.