
    Smith vs. Weed.
    Ths release of a lien obtained by the suing out of an attachment, is a good consideration for the promise of a third person to pay the debt of the party proceeded against by such process.
    The powers of a justice to issue asxattaehment asconferred by the Revised Statutes, are not abridged by the act to abolish imprisonment; on the contrary, they are enlarged and extended to new cases* differing however from the Revised Statutes as to the amount of indebtedness. The only operation of the act of 1831 on the Revised Statutes, is to dispense with the affidavit of witnesses as to the preliminary proof, and to declare the affidavit of the plaintiff sufficient to authorize the issuing of the process.
    This was an action of assumpsit, tried at the Herkimer circuit in May, 1837, before the Hon. Jornr Willard, one of the circuit judges.
    The plaintiff having sued out an attachment, issued by a justice of the peace of the county of Montgomery, against the goods and chattels of one John S. Joslin, by virtue of whice a levy was made upon a quantity of quarried stone as the property of Joslin, the defendant promised that if the stone was the property of Joslin, and the plaintiff would discharge his lien upon the same and discontinue further proceedings upon the attachment, he would pay the debt due to him from Joslin. The amount of Joslin’s indebtedness to the plaintiff, was $131, and the stone Was proved to be his property. The plaintiff alleged on the declaration, that the attachment was sued out under the statute entitled ct Of courts held by justices of the peace.” 2 22. S. 224. The justice who issued the attachment testified that the applieaMm for the process, the affidavit of the applicant, and the attachment were lost, but that the process was issued upon the affidavit of the plaintiff alone, and the ground of the application was, that Joslin had departed from the county where he last resided, with intent to defraud Ms creditors. He further stated that a bond was given with approved sureties, and produced the same, which was in the form prescribed by the Revised Statutes. A copy of the attachment tested on the tenth, and returnable on the nineteenth day of August, 1835, was read in evidence. The defendant moved for a non-suit on the ground of variance between the declaration and proof: that in the declaration, it was alleged that the attachment was issued under the provisions of the Revised Statutes, whereas the proof showed that the • process was issued partly under the Revised Statutes, and partly under the act to abolish imprisonment. Statutes, Sess. of 1831, p. 403, § 33, 34. He also insisted that the attachment was void, because, 1st. If could not legally issue for a demand exceeding $50 °s and 2d. The defendant in the attachment being a non-resident of Montgomery, not more than four days should have intervened between the teste and return of the process j and that the attachment being void, the promise of the defendant was without consideration, and for that cause, the plaintiff was not entitled to recover. The judge overruled the motion for a non-suit, and charged the jury that the plaintiff was entitled to their verdict for the amount of his debt against Joslin. The jury found accordingly, and the defendant now moves to set aside the verdict.
    
      C. Tracy, for the defendant.
    
      J. A. Spencer, for the plaintiff.
   By the Court, Nelson, Ch. J.

The attachment appears to have been regularly issued under the provisions of 2 R. S. 230 § 26, et seq. as amended in respect to the preliminary proof by the act of 1831, to abolish imprisonment for debt, Statutes, Sess. of 1831, p. 404, § 35, for a sum not exceeding $100, upon the ground that the defendant in that process (Joslin) had absconded from the county with the intent to defraud his creditors. The authority given to a justice by the Revised Statutes to issue an attachment, was not abridged by the 34th section of the act of 1831, but on the contrary was extended to other cases, viz. the fraudulent removal, assignment or secretion of property, limiting however, the amount in those cases to fifty dollars. The Revised Statutes are left untouched except in respect to the affidavit of he facts and circumstances on which the application is made, which by the 35th section may now be made by the plaintiff himself, instead of being made by two disinterested witnesses.

The judge was clearly right in ruling that the stone attached belonged to Joslin, the defendant in the process; that the lien was valid, and that the release thereof constituted a" good consideration for the undertaking of the defendant to pay the debt due to the plaintiff. 5 Taunt. 450. 2 East, 332. 4 Taunt. 117. 2 Saund. on Pl. & Ev. 547. Whether the agreement was intended to embrace the whole demand due, $131, or only $100, the extent of the lien, is matter of construction. The judge at the circuit took the former view of it from the language used by the witnesses, and I am inclined to think he was correct. The testimony of one of the witnesses is, that the defendant promised to pay the debt of Joslin, if the plaintiff would release the attachment ; this may fairly include the whole, as the amount of the debt must have been well known at the time.

New trial denied.  