Fosgate v. Mahon

■ This case depends entirely on the question, whether a creditor, who has procured an attachment to be issued under the act for. giving relief against absconding and absent debtors, has a right, by his own act, to supersede it, or not.

The only cases which have occurred in this Court, giving a construction to the statute, on the question now raised, are those of M'Kinley, (1 Johns. Cases, 137.) and M'Lean v. Rankin, (3 Johns. Rep. 369.) neither of which expressly . decide the point. As far as they go, they seem to take it for granted, that the creditor who sues out the attachment may supersede it; nor can we derive any light from the English bankrupt law, the provisions in the two systems being altogether dissimilar. The act itself must be resorted to, to furnish the construction. The attachment here was directed to be withdrawn, which was actually, done, upon its being served, and before any return or other proceeding was had under it. It appears to me, that the 21st section of the act is decisive. It authorizes a supersedeas, if the debtor *165shall, before (he appointment of trustees, give such security as the Judge shall approve, to the creditor at whose instance the warrant issued, to appear and plead to any action to be brought within six months against him by such creditor, and to pay such sum as may be recovered in such action.

Evidently, this provision shows, that until trustees are appointed, the remedy belongs to the individual creditor who sued out the attachment, and that it was intended that he should gain a preference, if the debtor chose to give it. And why may not the debtor, if he has no defence, pay the debt, without a trial, and thus do directly, what the act authorizes circuitously ? I perceive no solid objection to this, and none of the other provisions of the act affect the construction given to the 21st section.

It was admitted, that if the first attachment was out of the way, the second had no influence in the cause.

Judgment for the plaintiff