1 Iowa 546 | Iowa | 1855
The errors assigned involve alone, the "correctness of the ruling in the court below in dissolving the attachment. Two grounds are relied upon to sustain this order. First, that the affidavit for the attachment is insufficient. Second, that no proper bond was filed.
W e will first consider the affidavit, so far as it relates to the debt not due. To determine this, involves a construction of section 1852 of the Code, which provides, that “ the property of a debtor may be attached previous to the time when the debt becomes due, when nothing but time is wanting to fix an absolute indebtedness, and when the petition, in addition to that fact, states that the defendant is about to dispose of his property with intent to defraud his creditors j or that he is about to remove from the state, and refuses to make any arrangement for securing the payment of the debt when it falls due, and which contemplated removal, was not known to the plaintiff at the time the debt, was contracted.” That the affidavit in this case, complies with this section, we should entertain no doubt, but for a decision (to- an abstract of which our attention has been directed), made by our predecessors, at the June term, 1858. We refer to the case of Crew et al. v. McClung. We can find no opinion,
The averment that defendant refuses to make any arrangement for securing the payment of the debt, when it falls due, we think applies alone to the case where the debtor is about to remove from the state, and has no relation to the averment that “he'is about to dispose of his property, with intent to defraud his creditors,” Under this section, we think, two grounds are given, for either of which a party may have an attachment. In both instances, he must state that nothing but time is wanting, in order to fix an absolute indebtedness. In one case, in addition to this, he must state, that the defendant is about to dispose of his property, with intent to defraud his creditors. In the other, that defendant is about to remove from the state, and refuses to make any arrangement for securing the payment of the debt, when it falls due, and that such contemplated removal was not known to the plaintiff at the time the debt was contracted. This
We cannot believe that this was ever tbe design of tbe
Entertaining these views, we conclude that the court below erred in sustaining the motion, so far as related to the debt, not due, for any defect in the affidavit. The petition follows literally the words of the statute. • If a plaintiff seeks to secure a matured debt, and one not matured, in the same proceeding, and makes an affidavit good as to one, but defective as to the other, we see no reason for dissolving an attachment entirely as to both claims. It may properly be dissolved as to one, and sustained as to the other.
We next inquire, was this affidavit sufficient as to the debt due ? And here we perhaps would be justified in saying, that inasmuch as the motion was general, and did not distinguish in its specifications, defects as to the matured and non-matured portions of the plaintiff’s demands, and
The remaining inquiry relates to the bond and its sufficiency. In the statement of the case, we have quoted the exact language of the motion, so far as it relates to this cause. We have done so, because of its general language, and to call attention to an error that prevails too much in practice, and which we seek to remedy. Our system of practice contemplates clearness in its specification in all pleadings. In all demurrers and motions, the true ground of objection should be distinctly and specifically stated. Technical forms of pleadings, it is true, are abolished, but essential substance is designed to be preserved. A part of the legal substance is, that parties shall be advised by all • motions, demurrers, and pleas, what specific defect is aimed at, and what is the issue made, and not be surprised, even in the appellate court, by having defects pointed out, and is
For these reasons alone, we might be justified in saying, the court below should have disregarded so much of the defendants’ motion, as relates to the attachment bond. And had it been so disregarded, we should not have been inclined to disturb such ruling. It will not become necessary, however, to apply this rule in this instance, for we conclude that the motion should have been overruled for other reasons. The specific objection urged in argument by counsel is, that plaintiffs, and Smith, McKinlay & Poor, have no right to sign such bonds in their partnership names, and that a bond, so signed, affords no such security to the defendants, as the law contemplates. The bond is not under seal, and need not be. Private seals are abolished by the Code, and all instruments signed by the party to be bound, import a consideration, in the same manner that sealed instruments formerly did. Sections 974, 975. So far as the principals in this bond are concerned, we think, that being executed in a legal proceeding, instituted for the purpose of securing and collecting a firm debt, it is so far legitimately connected with their partnership business, that they would be bound for that reason. Again, as to the principals as well as the sureties, there is nothing to show but that the members of both firms were all present, and the bond signed with their entire knowledge and consent. If so, or such assent was afterwards given, there can be no doubt but'all would be bound. This assent or authority may be implied from circumstances. Story on Part. 117, 120; Mackay v. Bloodgood, 9 John. 285; Collyer on Part. 467, note 1; Gram v. Seaton, 1 Hall, 262.
And now, after such bond has been executed and approved by a sworn officer, whose duty it is to know that the parties signing have the power to execute, as well as that
Judgment reversed.
Isbell, J., doubting- as to so much as relates to tbe sufficiency of the bond,