Reinmiller v. Skidmore

By the Court—

The affidavit was sufficient to authorize an attachment to- be issued, pursuant to either the *164Revised Statutes or the act of 1831. ■ (2 R. S., 230, § 26; Laws of 1831, § 34.) Under the former statute, an attachment may issue, on proof that the debtor is about to depart from the county, while the proof required by the latter is confined to acts of the debtor, relating to his property. The affidavit contains all that is required by both statutes, but it might be inferred, if it was material, that the attachment was issued under the act of 1831, because a summons was taken out against the defendant in the attachment, and the subsequent proceedings were in conformity with that act.

The bond given was in the penalty required by the act of 1831, and although a mistake was made in the condition of it, yet it was approved by the justice, and as against the plaintiff, a stranger to the proceeding, it ought to be held sufficient to uphold his jurisdiction. (Bascom v. Smith, 31 N. Y., 595.) The defendant in the attachment might have waived the defect, and that seems to be the test, whether it was a nullity or a mere irregularity. (Clapp v. Graves, 26 N. Y., 418.)

We think the return of the constable was a substantial compliance with the statute.

Parol evidence of the execution and of the sale thereunder, was admitted without objection. It is too late now to raise that objection.

The cases of Hull v. Carnly (1 Kern., 501; S. C., 17 N. Y., 202), and the authorities therein cited, are decisive of the right to sell the interest of a lessee of a chattel, by virtue of an execution against him, and to deliver possession of the chattel pursuant to the sale, as was done in this ease. ITor does a reversal of the judgment on which the execution issued,in such a case, invalidate the levy or sale, or make either the party or the officer a trespasser. It merely annuls the title acquired by means of the sale, and entitles the owner of the chattel to recover it from any one into whose possession it has come.

If, therefore, the interest of Faust in the chattel had been that of lessee, as all parties have assumed, the defendant would have been entitled to judgment. But it was not such *165an interest. The instrument of hiring provided that “ the use of said wagon ” should be “ only for his baker business, and not for any other use,” and prohibited a sale or loan of the wagon. The legal effect of the instrument was to confer upon Faust merely a personal license to use the wagon. Such an interest cannot be the subject of sale under an execution. For this reason the plaintiff is entitled to judgment. Judgment accordingly.