
    
      HICKS vs. DUNCAN & AL.
    
    Appeal from the court of the first district
    itearf «™court! pswyisfatSTd Before ^notary VeriT suffidenüy au-theaucated by the seal of the notary. An attorney for an absent
   Martin, J.,

delivered the opinion of the court' On a writ of attachment, several persons were summoned as garnishees, none of w^om admitted he had any property, or was *n<^ebted to the defendants. One of the garnishees, however, stated, he had drawn bills ’ ’ on them, and his being a debtor or creditor de-_ ~ pended on the fate of these bills, which was as yet unknown.

The court appointed an attorney to defend liie interest of the defendants, and this gentleman prayed that the writ of attachment might be set aside, as the plaintiff had not annexed a sufficient affidavit to his petition.

This was refused, the court being of opinion that as the sheriff’s return did not show that any property was attached, the defendants were not in court, and no order could be made for or against them.

From this decision the attorney appealed.

The court having (either on the motion of the plaintiff ⅛ counsel, or without their obiec- * . lion) appointed an attorney to defend the interests of the defendants, it became his duty to take all the measures he might have legally taken, if appointed by them. For if that be not the case, for what purpose was he appointed ? His appointment was not premature, for it might have been made before the suit was brought.—Civil Code, 14, art. 8.

The answer of the garnishee who considered himself a debtor or creditor of the defendants, according to the fate of his bills, which was at yet unknown, bound in his hands whatever he might owe to the defendants, in case of the due honor of the bills, and it was important to defendant to loosen the garnishees hands, if the note on which he was summoned had irregularly issued. The attorney, in our opinion ought to have been listened to when he offered to show this. In doing so, the court could do no injury, but would rather do a benefit to the plaintiff, for an illegal attachment could have no effect, and the sooner it was dissolved was certainly the belter for him.

There were two affidavits annexed to the petition, one from the plaintiff’, made before a notary public in the city of New-York ; J r . . another by the plaintiff’s agent here.

Pierce for the plaintiff, Stromhridge for the defendants,

The first was not duly authenticated ; the signature ami seal of the notary being verified by those of the clerk of the city and county. Of these, the courts of this state have no better judicial knowledge than of the notary’s. The affidavit is silent as to the commorancy of the defendants.

The agent’s affidavit lacks the assertion of his knowledge of what he swears to; he speaks of his belief only. This heretofore sufficed. ml i, 98.

But now the statute requires the agent to swear from Ms own knowledge,—Code of Practice, 244.

We think the attachment issued irregularly,

It is therefore ordered, adjudged, and decreed that the judgment of the district court be annulled, avoided and reversed, and the attachment set aside ; and the plaintiff'to pay costs in both courts. '  