The question in this case is, which of the two parties, judgment creditors of Edward Stapleton, is entitled to a priority of lien upon his property by virtue of their respective attachments.
The defendants’ attachment was first made, but the plaintiffs’ claim is that it is invalid as against their lien, because the suit was not founded upon any indebtedness of Stapleton.
The committee have found that the judgment in favor of the plaintiffs was rendered for a just and bona fide debt. The record, in the defendants’ case, shows that their judgment was founded upon a claim for moneys paid by 'them to the amount of $4,000, as set forth in their bill of particulars, filed in the case, and the report of the committee shows that no such moneys have ever been paid by them.
Were there nothing more in the ease, it is clear that a judgment so obtained would be of no validity as against a judgment of a bona fide creditor of Stapleton ; and that, upon these facts alone, the plaintiffs would be entitled to the protection they ask.
But the committee have further found that the defendants’ judgment was not in fact founded upon the claim set forth *362in their bill of particulars, but upon their liability to the Hatters’ bank as makers of two promissory notes, amounting to the sum of $5,100, upon which Farnam and Stapleton were endorsers, and which the latter had agreed to pay; and that their object in bringing their suit, was to secure to themselves and to Farnam an indemnity for their liability on those notes.
It is very evident that this claim is a very different one from that shown by the record. But does this claim place their judgment in any better situation, or give to it any greater efficacy, as against the plaintiffs ?
The debts contracted at the Hatters’ bank were originally for the discount of two promissory notes, made by the Hickoks, upon which Stapleton was no otherwise liable than as their endorser, and perhaps as a secret partner with them in their business. These debts to the bank remained as they originally were, down to the time of the attachment of the defendants, and even down to the time of the rendition of the judgment in their favor, with the exception of the substitution of new notes at the bank, with the same names as makers and endorsers, in the place of prior ones, as they respectively became due.
The Hickoks had paid nothing on account of their liability to the bank, and consequently had created no indebtedness in their favor against Stapleton, and by possibility never might. Stapleton was bound to them by his agreement to assume and pay the bank debts, but was not indebted to them in any specific debt, as he remained liable to the bank as an endorser of those notes.
It is further claimed, that the plaintiffs can not sustain their bill, as they had adequate remedy at law; that we have a statute in this state, which authorized the plaintiffs, as the attaching creditors of Stapleton, to appear in, and defend the suit against him, in favor of the Hickoks, and that they can not now impeach a judgment, the recovery of which they might have prevented, if their claim is well founded.
*363That statute, however, is a recent enactment,’* and was not intended to take away or impair any right which an attaching creditor previously had, but only to afford him an additional remedy, and perhaps one more expeditious and less expensive. It was therefore optional with the creditors, to avail themselves of the provisions of that statute, or rely upon their equitable and legal rights, as they existed before the statute was passed.
The Hickoks, having failed to show any just or valid debt, as the foundation of their judgment against Stapleton, are not entitled to that priority of lien upon his property which the law would otherwise give them; and as the value of the bank shares is found to be much less than the amount of the plaintiffs’ judgment, we are of opinion that they are entitled to the relief prayed for in their bill, and so advise the superior court.
In this opinion, the other judges, Storrs and Hinman, concurred.
Decree for petitioners advised.
Passed in 1846. Rev. Stat., tit. i., sec. 59.