2 Daly 412 | New York Court of Common Pleas | 1869
The affidavit upon which the warrant was granted was not sufficient. The only facts positively sworn to are these: the existence of the debt; that the plaintiff was induced to make the contract by a representation of the defendant which is not stated to have been untrue; that the defendant was frequently requested to pay it, but put off the plaintiff “ by various excuses”; and, that the business
If what is here stated had been brought to the knowledge of the justice by competent evidence, it would be sufficient, presumptively, to warrant the conclusion that the defendant had done, or was about to do, one or more of the acts for which, under the statute (Laws of 1831, p. 402, § 34), an attachment may be granted; but it is given in the affidavit as information derived from a person not named, and who was not under oath, without any explanation of the reason why his affidavit was not procured, or more reliable .testimony than hearsay obtained; which is not sufficient to authorize the arrest of a man as a fraudulent debtor (Broadhead v. McConnell, 3 Barb. 191; Stewart v. Brown, 16 Id. 367; Smith v. Luce, 14 Wend. 238; Ex parte Haynes, 18 Id. 615 ; Tallman v. Bigelow, 10 Id. 420; Smith v. Weed, 20 Id. 184; People v. Recorder of Albany, 6 Hill, 429 ; St. Amant v. De Beixceidon, 3 Sandf. 703).
Information derived from third persons, given in reply to inquiries made at a party’s residence, may be received as evidence to show his absence, in the case of a subscribing witness, or of an absconding debtor, as an exception to the general rule which excludes hearsay (1 Greenleaf’s Ev. §§ 101, 574; Morgan v. Avery, 7 Barb. 656); and it may be that information derived from third parties will suffice in the affidavit for an attachment under the nonimprisonment act, where the source and the nature of the information upon which the plaintiff founds his belief of a fraudulent intent, are set forth with such particularity
Judgment reversed.