Skinner a. Stuart. SKINNER a. STUART. Supreme Court, First District; General Term, Feb., 1863. ACTION BY CREDITOR TO ENFORCE THE LIEN OF AN ATTACHMENT AND EXECUTION.-REMEDIES IN FAVOR OF ATTACHING CREDITOR.-SETTLEMENT OF PRIORITIES.-ACTION BY PLAINTIFF IN SHERIFF'S NAME. A plaintiff is not entitled to maintain an action in his own name to enforce the lien of an attachment issued in his favor, as a provisional remedy, without a strict compliance with the provisions of section 238 of the Code, which requires him to give an undertaking to the sheriff. The remedies afforded by the chapter of the Code relating to attachment (§§ 227, 243), are the only remedies known to our law in such cases. On complying with the provisions of § 238, the plaintiff, having an attachment, may prosecute the actions therein authorized, either in his own name or that of the sheriff. A creditor cannot maintain an action in aid of his execution without showing fraud, collusion, or combination, obstructing the ordinary processes of the law. Mere questions as to priority of lien between himself and other creditors, will not suffice. Appeal from an order overruling demurrer. This action was brought by Francis Skinner, Henry H. Horton, Edmund F. Cutler, Josiah Bardwell, and William P. Brentwell, against George H. Stuart, and twenty-four others, to aid the levying of an attachment, issued as a provisional remedy in favor of the plaintiffs, in an action against Joseph W. Shepherd and William R. Moore; and, also, to determine the priority among certain of the defendants, who were creditors of Shepherd and Moore. The complaint is stated at length, 13 Ante, 442, where the decision sustaining the action is reported. The complaint set forth, among other things, that plaintiffs, and all the defendants, except G. H. Stuart & Co., and S. B. Chittenden, were attaching creditors of the firm of Shepherd & Moore, non-resident debtors; that the attachments were all in the hands of the sheriff of this city and county, at the time of Skinner a. Stuart. the commencement of this action, and still remained there; that the defendants, G. H. Stuart & Co., had in their possession large amounts of money and property levied upon by such attachments, but refused to deliver the same to the sheriff under the attachments; that the defendant Chittenden became the assignee, or purchaser, of all the interests of Shepherd & Moore in said money and property, subsequent to such attachments; that the defendants Peet, Hughes & Peet, issued the first attachment, but-as against the other attaching defendants and plaintiffs were not entitled to claim priority, as their ac tion was commenced before their cause of action matured. The defendants, Stuart & Co., Linder & Kinsley, and Butterfield & Jacobus, demurred, separately, but all specified the same grounds of demurrer, which were a copy of the grounds of demurrer named in section 144 of the Code. The defendant Jewett, after the general demurrer, said, specially: 1. That the cause of action is vested in the sheriff, in whose name the action should have been brought. 2. That Shepherd & Moore and the sheriff should have been made parties defendant, and that there is otherwise a defect of parties defendant. 3. That the sheriff should have been made plaintiff; and if not, then the defendants other than Stuart & Co., Chittenden, and Peet, Hughes & Peet, ought to have been made plaintiffs, unless they refused to join; and that there is otherwise a defect of parties plaintiff. 4. That there is an improper uniting of causes of action in respect of the cause of action against Peets and Hughes, not being properly connected with that against Stuart & Co. The defendants Peets and Hughes stated: 1. That several causes of action have been improperly joined. 2. That there is no cause of action. 3. That the sheriff ought to be made defendant. The defendants Burnham, Plumb, and Atwater did not appear. The other defendants did not answer. The demurrer was overruled by Mr. Justice Allen, and the three sets of defendants, whose demurrers are stated above, appealed. Andrew Boardman, for the appellants, Stuart & Co.-I. The complaint does not state facts sufficient to constitute any cause of action against the defendants, G. H. Stuart & Co. 1. The only allegation in the complaint, upon which any relief Skinner a. Stuart. against Stuart & Co. could be based, is, that when the sheriff demanded of them that they should deliver to him the property levied upon, they refused to comply with said demand, or to pay or deliver over said property, "or properly to account therefore, as required by law." 2. There is no allegation that since the recovery of judgment, or the issuing of execution, any demand has been made by the sheriff upon Stuart & Co. for the delivery of the property, or that they have been informed of the recovery of judgment, or the issuing of execution. 3. It is not averred that Stuart & Co. have interposed any claim to any portion of the property, or that they have done any act to prevent the sheriff from taking manual possession of the prop. erty. It is averred that the property levied upon consists, in part, at least, of tangible articles which the sheriff might seize. 4. The allegation that Stuart & Co. refused properly to account for the property levied upon, as required by law, is not an averment that they have refused or omitted, upon the proper request, to furnish the sheriff with the certificate in reference to the property of the debtors in the attachment, required by section 236 of the Code. Such certificate is not an accounting for property." 5. The only question, therefore, presented by the pleading, on the question of "contumacy," is, whether a party, on whom an attachment against a non-resident debtor is sought to be served by the sheriff, may, when applied to for the property, after having given the proper certificate under the statute, omit to do any affirmative act to assist the sheriff in taking possession of the property attached, and leave the sheriff to seize such property, and reduce it into his own possession, at his own risk. It is submitted that the only affirmative act required of the custodian of such property, when attached, is, that he shall give the certificate specified in section 236 of the Code; and the possession is to be obtained by the affirmative act of the sheriff. (See Code, §§ 232-236; also, 2 Rev. Stat., 4, S7, 8; as amended, Laws of 1840, § 9; Ib., 81, §§ 34, (36.) 6. If it can be considered as containing an allegation that Stuart & Co. refused to furnish the certificate required by section 236, even that is no ground for maintaining the present action against them; for the same section has provided the means for compelling the delivery of the certificate, or the examination, under oath, concerning the same, as a substitute therefor. Skinner a. Stuart. II. Even if the complaint alleged a demand by the sheriff of Stuart & Co., after judgment and execution, and a similar omission and neglect to deliver over the property, still there would be no cause of action against Stuart & Co. For while the bailee, or factor, holding the property of the non-resident principal, will not be warranted in resisting the sheriff, in such case, he is not, by law, required to assist in subjecting the property of his principal to such a lien. III. This action cannot be maintained by the present plaintiffs. Speedy and complete remedies have been provided in favor of the sheriff, to enable him to possess himself of the tangible property, and reduce to his control the credit, shares of stocks, &c., of the debtors, in the attachment and execution. (See Code, §§ 232, 236, 237; 2 Rev. Stat., 4, §§ 7, 8.) Such proceedings of the sheriff may be summary and inexpensive, or they may be active, when that course shall be requisite. With such remedies provided in favor of the sheriff, the court will interfere only when necessary to prevent a failure of justice. IV. No court of equity has ever assumed to act in aid of a court of law, to remove obstacles to the execution of its process, where the act complained of was a mere omission of the party proceeded against, to assist the sheriff in enforcing his process. V. Peet, Hughes & Peet cannot be required, in this suit, to re-establish the validity of their debts and attachment. They are proceeding to do that in the suit against Shepherd & Moore. Judgment in that suit, will be conclusive in all suits and proceedings. Shepherd & Moore are not parties to this suit. VI. The pretence of settling priorities among the attaching creditors, will not warrant the court in assuming jurisdiction. No necessity therefor is shown. VII. There is a defect of parties plaintiff. 1. The demurrer of Stuart & Co., on this point, is sufficiently definite. (Durkee a. Saratoga & Wash. R. R. Co., 4 How. Pr., 226; Hyde a. Conrad, 5 Ib., 112; Anibal a. Hunter, 6 Zb., 255; Getty a. Hudson River R. R. Co., 8 lb., 177-182; Johnson a. Wetmore, 12 Barb., 433; Haire a. Baker, 5 N. Y., 357; Forrest a. Mayor, &c., of N. Y., 13 Abbotts' Pr., 350; Abbotts' Pl., 449–453.) 2. The action, if it can be maintained at all, can be maintained only by the sheriff. He is, within the meaning of the law, the Skinner a. Stuart. true party in interest. (Code, §§ 231, 232, 237, 238; 2 Rev. Stat., 3, §§ 7, 8; amended, Laws of 1840, ch. 354, § 1.) 3. The other attaching creditors should be joined as plaintiffs, or the proper excuse for not joining them should be given. (Code, §§ 117, 119; Habicht a. Pemberton, 4 Sandf., 657; Bishop a. Edmiston, 13 Abbotts' Pr., 346.) VIII. There is a defect of parties defendants. 1. The action should be only against Stuart & Co. 2. If the debt of Peet, Hughes & Peet is to be litigated in any manner in this action, then Shepherd & Moore must be made parties thereto. Anthony R. Dyett, for the appellants, Jewett and others.I. The complaint contains no cause of action against the defendant Jewett. 1. There is no question as to his debt, his attachment, or its priority. 2. As far as any cause of action exists in anybody against Stuart & Co., it is not in the plaintiff, but in the sheriff. (Code, §§ 234-238.) The latter section authorizes the plaintiff to prosecute the action, not in his own name, but in the sheriff's-i. e., to prosecute the action which the sheriff brings; else why indemnify the sheriff against costs? As far as the property consisted of chattels, for which trover might be brought, the sheriff might maintain trover or trespass at common law, as well as by the terms of the Code. (Code, § 227, subd. 4; Crocker on Sheriffs, §§ 807, 809, and cases there cited.) 3. No relief is asked against Jewett. 5. The plaintiffs, subsequent attaching creditors to him, assume control of the adjustment of the indebtedness of Stuart & Co., and of the recovery of the property from them. This duty the law places with its sworn officer, the sheriff, with liberty to the creditor to protect his rights by prosecuting it. As it now stands, Jewett and the other prior attaching creditors, must let these plaintiffs have control of the prosecution of the claims against Stuart & Co., without either voices or action in the matter, and no opportunity to appeal, if on the trial Stuart & Co. obtain, no matter how erroneous, a judgment, if these plaintiffs neglect or refuse to appeal. And yet these defendants, if the action is properly brought, are bound by the judgment. If this complaint had been filed by the plaintiffs, on behalf of themselves and all others who might join; or if the attaching creditors were made defendants, after a refusal to join as plaintiffs, although it would |