The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1854-12-29
Supreme C0urt-Speclal Term.
OWEN VS.. POTTER-ExAMINATION ON OATH OF PER
SONS NOT PARTIES TO THE SUIT.


ROOSEVELT 1.-THE law provides Code 1867 that
whenever the sheriff, having warrant of attachment
against debtor, shall apply to person supposed to
hold property of the debtor such person shall furnish
him with certificate, under his hand designating the
amount and description of the property debt held for
owing to- the defendant and that II such person
fuse to give the required certificate the Judge may,
pain of commitment require his personal attendance to
be examined oath concerning the matter In the
present case, Messrs Carson Hurd being applied to
gave certificate that they had property of the debtor
in their possession under their control And the ques
ton they, under such circumstance be compelled
to submit to examination? If they had certified that
they had penknife and only that Of the value Of fifty
cents and more farther steps, II is obvious under
the section referred to- could have been taken against
them And is not such a certificate substan-
TALLY the saying, ssunder their hand''
that they have no property of the debtors
Or, putting the quere in another form, not
the words g property, correct legal designation
in such of the and description Of pro-
perty held The law makes the certificate of
the who has interest in the controversy bar
to any further inquiry in that summary mode If the
creditor Notwithstanding the certificate would proceed
further, he must do so in the same manner his
debtor must have donehc must institute, in the
his debtor, ordinary in the usual and ord
nary manner giving to the individual proceeded against
the same forms OF defence as IL no attachment had been
issued An attachment is in the nature of assign
nent and it is a we'll established principle which the
Coae in this provision clearly recognises that the
sgnee can have greater rights than his assignor IL
the assig nor-hs claim being dcnied-must have sued
BY regular summons and complaint. the assignee shall
do the 1t clear therefore that the cause
shown by Messrs Carson and Hurd, both according to
the spirit and letter Of the Code is sufficient in the first
instance 10 protect them from the extraordinary nqu
ston proposed 10 be instituted. They are not bound
against their will further to disclose in a suit which
they are not parties the particulars of their business
If any, with the plaintiffs debor. As bills Of discovery
abolished. how then it may be asked Is the neces
sary information to be obtaneds Is the creditor be
estopped by the statement without OATH OF per-
haps interested person. that he has only cent or
in other words, property of the debtor The Code
but it adds that il the creditor dsbel
the statement, he may either in the of the she
riff in the Of the defendant in the attachment
(subject to the direction of the judge) stake
such legal proceedings (sec 1922 may be necessary
to collect and receive into his possession all debts
dts and effects Of the defendant" The less formal
method might perhaps have been preferable. 1t is su
Gent, however, that the Legislature thought-or at
least have enacted-other aud that il is the duty
courts when that body has declared the law whether
wisely not, to carry out its intentions The order
their cause must, therefore, be discharged.