announced the opinion of the Court:
This was an action of assumpsit brought in the circuit court of Ohio county, in which judgment was rendered for the plaintiffs for three thousand two hundred and twenty-five dollars and sixteen cents and costs. The writ of error is to an order of said court quashing the plaintiffs’ attachment, issued in said action against the estate of the defendants, upon the ground that the affidavit on which the attachment was founded is insufficient. The making of said order is the only error assigned by the plaintiffs’ in error in this Court.
The said affidavit, after formally stating the amount, nature and justice of the plaintiffs’ claim, proceeds as follows: (1)— “That the defendants are removing and are about, to remove a part of their property out of the State with intent to defraud their creditors; (2) and are converting their property into money and securities with intent to defraud their
The remedy by attachment is in derogation of the common law and exists only by virtue of the statute, and being summary in its effects and liable to be abused and used oppressively, its application must be carefully guarded and confined strictly within the limits prescribed by the statute. An order of attachment is an execution by anticipation. It empowers the officer to seize and hold the estate of the alleged debtor for the satisfaction of a claim or demand to be established in the future and for which a judgment may never be obtained. The claim may bo entirely unfounded, and even, when the demand is just the order may issue and be levied before it has become due and payable. The proceeding is to some extent the reverse of the ordinary course of judicial proceedings. The latter subjects the demand of the plaintiff to judicial investigation and permits the seizure of the debtor’s property only after judgment obtained, while the former commences with the seizure of the debtor’s property and afterwards subjects the plaintiffs’ claim to such investigation. The statute has therefore, for the protection of the debtor, carefully defined the grounds which shall authorize a creditor to resort to this harsh remedy. It has not only done
The manifest object of the statute in requiring the material facts to be stated, is to guard the property of the debtor against improper seizure and to enable the court to judge and determine whether the information, thus supplied by the affidavit, furnishes reasonable proof of the main fact involved —the fraudulent intent of the debtor. If the evidence of this fact does not sufficiently appear from the “material facts” averred in the affidavit, the same must be regarded as insufficient. Capehart v. Dowery,
Let us apply these rules to the “material facts” stated in the affidavit before us. The first is that,, “defendants are shipping staves and railroad ties out of this State, disposing of them without applying the proceeds.of sale-on this debt as promised by them.” This statement amounts to an averment that the defendants have not paid the plaintiffs’ debt as they promised to do. This is quite a common complaint, But it is certainly not of the character which authorizes an attach-. ment. The fact that the defendants are shipping staves amities out of the State and disposing of them does not show a fraudulent intent. The selling of staves and ties may, for all that appears, be the business in which the defendants are engaged; and if they can obtain a better price by. shipping and-selling them outside of the State than in it, this act is- evidence of an honest rather than a fraudulent intent. It is not alleged that the act is contrary to the proper conduct- of their business or that it is not usual for them .to market their staves ■ and ties outside of the State. Nor is it alleged that the money derived from such sales is -not properly applied to the payment of other debts as pressing-and just as- the debt of the plaintiffs. - • •
The second -is that the defendants “have .willfully and falsely misrepresented the financial condition of their firm in order to obtain this credit.” This averment does not inform us by what means or devices, if any, the defendants made false representations. The averment is a mere conclusion from facts not stated or that may not exist. .Assuming, how
The third is that, “one of the defendants, ¥m. Armstrong, has since given a deed of trust on his real estate with intent to delay and defraud their creditors.” In an action against two joint debtors, if the affidavit is insufficint as to one of them it will not authorize an attachment against the property of both. Hamilton v. Knight,
The fourth is that, “the other defendant has declared his intention to leave this State and reside in another State.” There is certainly no fraud in this nor does it at all, warrant an inference of a fraudulent intent. It is neither unusual nor illegal for a person to leave this State and reside in another State.
Th & fifth is that, “they neglect and refuse to make any arrangement hy which plaintiffs and other creditors will be secured.” It does not appear from this that either the plaintiffs or any other creditors ever demanded any security for their debts, or that the defendants had the means or ability to give such security. Unless the defendants had the means or ability to secure the plaintiffs and other creditors, no fraudulent intent can be presumed from their reiusal or neglect to do so.
The sixth and last is, that the defendants “ are selling and disposing of their property without paying any part of this debt.” For all that appears in this statement defendants may have been paying other just debts with the proceeds of the property sold or otherwise using them in good faith and for honest purposes.
Taking these “material facts,” collectively or distributively, they do not establish all or any one of the grounds
There being thus no error-in the judgment of the circuit court to the prejudice of the plaintiffs in error, the defendants in error claim that under the ninth rule of this Court the said j udgm ent ought tobe reversed for error to their prej udice.
Under the common law practice the defendant was permitted to file but one plea, either in abatement or in bar, unless having-filed a plea in abatement such plea was held bad on demurrer, or was tried by the certificate of the ordinary, or upon a replication confessing and avoiding the facts of the .plea. In these and some other cases, which are exceptions to the general rule, if the issue be found against the -defendant, the judgment was respondent ouster. — James River & Kan. Co. v. Robinson,
In James River & Kanawha Co. v. Robinson,
I am, therefore, of opinion that the defendants’ said pleas in abatement were tendered-too late, and that they were properly rejected by the circuit court.
For the foregoing reasons the judgment of the said .circuit court must be affirmed with costs to the defendants in error and thirty dollars damages. .
Judgment Affirmed.