Philander Pratt, Pl'ff in Error, vs. Delando Pratt, Lewis Hayes and Josiah Hayes, Def'ts in Error

Philander Pratt, Pl’ff in Error, vs. Delando Pratt, Lewis Hayes and Josiah Hayes, Def’ts in Error. In a proceeding by attachment, under the Statute of this State, the facts and circumstances upon which it is claimed that the attachment issue, should be stated in clear and intelligible terms, in order that the officer, whose duty it is to allow or disallow the writ, can ju'dg'e bf the propriety of granting it. Mere hearsay as to the intention of á phrty to convey his property to defraud a creditor is not á sufficient cause for granting an attachment. The fact of such declaration tod intention should be shown by the person who heard the declaration or knows the fact. Where one of several debtors declares a fraudulent intention ás against his creditor it is not evidence on which an attachment should issue. It would open the door to fraud as against a co-debtor. If one co-debtor be shown to have á fraudulent intention, and it he also shown that his co-debtor is insolvent; it would be a sufficient Cause for granting an attachment, without showing any fraudulent declaration or intention on the part of thdiitáolvbnteo-debtor. Error to the Sauk Circuit Court; This suit was instituted in the Cotftl Below by attachment. The affidavit upon which the twit issued, after setting out the ’indebtedness of the defendants in the court below, alleged that the defendants, wep about fraudulently to remove and convey their property to defraud their creditors, and particularly the plaintiffs in the Court below. That the affiant had been informed by the intimate acquaintances of two of the defendants and believed that they had said that they \yould remove ápd convey their property beyond the plaintiffs reach, and that they had intended to remove it beyond his reach before that time. That the affiant had been informed in the same manner, and verily believed’that the said-two defendants had repeatedly said they would never pay the Plaintiff, but would convey their property beyond his reach, That one of the defendants had told the affiant that they would not pay the plaintiff tiis debt until they were o.blig ■ ed to, and that they should sell their property immediately. That the. affiant had b,een informed by credible persons that they intended to dispose, of their property, subject to be taken in execution, at the earliest opportunity, for cash, to prevent, hinder, or delay, the plaintiff from the collection of his debt That one of the defendants had then recently told the affiant that he should remove his property opt of the plaintiff’s reach; and that the defendants had property subject to attachment. Under the attachment is sued upon this affidavit the property of the defendants was taken, and a schedule thereof returned with such attachment. At the return term of the attachment two of the defendants appeared and filed a motion to quash the attachment upon the following grounds: 1st. That the nature of the indebtedness tyas not set §ut with sufficient certainly. 2d. That there'Webe nó facts or circturisfances stated in the affidavit on -Which fhe writ issued, that warranted the belief thht'the defendalits tfcefe'ahou't fraudulently to* dispose of thér-r pbbperty, &<h 3d. That the affidavit was not Traversable, because it did not show to whom the statements therein alleged to have been made, were made, 4th. That there was no seal to the writ. 5th. That the Sheriff did not appraise thé property attached. 6 th. That the affidavit was bad for uncertainty. 7th. , That though the affidavit was true it was not sufficient to warrant the issuing the attachment. On the argument of this motion it was sustained by the Court below and the writ quashed, on the ground of the insufficiency of the affidavit, and a Judgment wasr rendered for the defendants below, and a restitution of the property attached, awarded to them. The plaintiff below assigns for Error, here, that the Court below erred in quashing the writ, and alleging that the affidavit was sufficient under the Statute, regulating attachments. Abbot, for PPff in Error. Collins, for Def’ts in Error. [MAJORITY — Hubbell, J.] By the Court. Hubbell, J. This is the common case of a writ of attachment, under the late statute of this State, issued on affidavit. In the Court below, the writ was quashed, on motion, for insufficiency of the affidavit. The question on Error here, is the same as there; to wit: How far it was necessary for the affiant to show, by facts and circumstances, that the defendants were all about fraudulently to remove or convey their property so as to hinder and delay their creditors'? There are three defendants. The affiant, after swearing, to-the indebtedness, states.positively, that the defendants (naming them all) “ are about fraudulently to remove and convey their property, so as to hinder and delay their creditors.” This statement must be taken as an expression of a belief or opinion; - in other words, as a legal conclusion drawn from facts and circumstances within the affiant’s knowledge. The Statute contemplates the expression of a belief 'asto-the fraudulent intention; and properly requiresthat “ the facts and circumstances on which such belief is founded,” shall be set forth, fok* the judgment of the officer who allows the writ. The affiant proceeds to specifydhe facts and circumstances, on which his. principal statement is based, but not in-as clear and intelligible terms as could be desired. A majority of the Court -understand hito to say, that -he had 'been informed, and believed, that Lewis Hayes and Josiah Hayes had said that they would remove and convey their property be- . yond his reach; and that they never would pay him. And further, that Lewis Hayes told him, the affiant, that they, ^(meaning the two defendants, Hayes’,) would mot pay the debt, and should- sell and dispose of their property imme- * diately, and remove it out of his reach. The first part of this statement is toerely hearsay. The affidavits of the .persons to whom the Hayeses made their declarations, "-should have been given. The last clause is direct, and "sufficient, as to the intention of the two Hayeses, and if it ihad-been-coupled with'a'Stat-emenfthat the other defendant was, insolvent, or out of the jurisdiction of the Court, the affidavit might have been sustained. The statements may be strictly true, and yet the defendant, Pratt, might have had abundant means to pay and,the affiant have been perfectly secure. In the present shape, the affidavit is entirely consistent, not only with the affiant’s ample security, but yrith a collusion between him, and the defendant, Pratt, to. coerce the other defendants, by this proceeding, to pay the whole debt. Proceedings by attachment, are ampng the most summary and • stringent known to the law, and they should be confined strictly within the limits, of the Statute by which they are authorized. In. the present case, it is easy to see, as in many others,, that the process of the. law might be perverted to purposes of oppression, if the only proper rule in regard to its allowance, were, to be. relaxed. Without imputing any improper motive to the. plaintiff; the judgment below must be affirmed upon gene-, ral principles. Judgment affirmed with costs,.