21 Wend. 672 | N.Y. Sup. Ct. | 1840
By the Court,
The statute prescribes, that whenever the debtor shall secretly depart from the state with intent to defraud his creditors, See,., application for an attachment may be made, &c. 1 R. S. 765, § 1. The application shall be made in writing, verified by the affidavit of the creditor, &c. and among other things, shall state “ the
Affirming that a party has left the state with intent to defraud his creditors, may be predicated more upon matters of opinion, or belief, than upon fact. The affirmant may honestly believe, and thus affirm it in general terms ; whereas, if called to state the facts and circumstances upon which he reached the conclusion, the officer (being thus enabled to exercise his judgment in the matter) might well differ from him. Certainly, as far as the witnesses here undertook to explain, they failed altogether in laying any foundation for their conclusion, unless we are to assume that a visit to Michigan is at lertst prima fa.cie, if not conclusive evidence, of an intent to abscond in fraud of creditors. The case of Smith v. Luce, 14 Wendell, 237, is an authority on this point. There, in an analogous case, the affidavit was in the general words of the act, but was holden defective in not stating the facts and circumstances upon which the general affirmation was predicated. •
Proceedings reversed.