Lenox, Maitland & Renwick v. Howland

Per Curiam,

delivered by Spencer, J. We da not think that because the statute points out a particular mode, by which a supersedeas may be obtained, we are ousted of jurisdiction in this state of the case,. We conceive that, from the general superintending power of this court, we have a right to examine, whether the attachment has not improvidently issued, and on this ground, review the order of the judge by whom it was directed. On the present occasion, the plaintiffs have not contradicted the affidavit of the defendants, but, resting their opposition on the matter it details, have reposed themselves on its contents. Exercising, then, that right of controul which we think we possess, we cannot but see, that the plaintiffs have failed in showing such a debt as is within the purview of the act. The statute applies only to those which are capable of being set off, not to demands which arise from torts, or ex delicto. As, therefore, ' e the claim of the plaintiffs is stated to be of this nature, proceeding from the misfeasance of the captain, and this is not denied by the opposite party, the motion must be granted ; but with permission, however, to the plaintiffs, to show any day within term, that they have a debt such as is within the purview of the act.

Kent, C. J.

I am against the motion, because I think the only remedy is under the 21st section of the act, which, in my opinion, is fully sufficient: If the bond there directed, be given, the question whether debtor or not, within the statute, can be decided; for the instrument can apply only to debts within the law. The proceedings below are regular, and on that score we have, therefore, no right to interfere.

Thompson, J.

I concur in the opinion of the Chief-Justice.