Murray v. Hankin

Davis, P. J. (dissenting).

— I do not think a subsequently attaching creditor ought to be allowed to succeed upon a point of this kind. The defendant in the action by not taking such an objection waives it. The junior attaching creditor ought to be required to show that there were counter-claims or offsets which might be interposed.. One- creditor should not be allowed to trip up the heel of another prior in diligence without being able to assert some more substantial objection than this. The agent evidently had better, or at least as good, knowledge of the condition of things between the plaintiff and the defendant as the plaintiff' himself. His affidavit on this point presents facts upon which the judge in granting the attachment might find the fact asserted to be substantially proved.

I am of opinion that the court below rightfully disposed of the motion.