14 Minn. 520 | Minn. | 1869
By the Court
This is an appeal from an order setting aside an attachment against the property of the defendant. The affidavit upon which the attachment was allowed states as the ground of the attachment, “ that the said defendant has assigned, secreted or disposed of, or is about to assign, secrete or dispose of his property with intent to delay or defraud his creditors.”
The statute provides that an attachment may be allowed whenever the plaintiff, his agent or attorney shall make affidavit * * * that the defendant * * * “ has assigned, secreted or disposed of, or is about to assign, secrete or dispose of his property with intent to delay or defraud his creditors.” Sess. L. 1867, p. 110, Ch. 76. The affidavit in stating the ground of the attachment, it will be perceived, uses the language of the statute just quoted.
The only question is whether the affidavit states several distinct grounds of attachment in the alternative or not. ¥e think it does. The intention of the statute was to protect creditors against the fraudulent conduct of their debtors, but in doing so it was also intended to protect innocent debtors against oppression and injury by specifying the acts of the debtor, which if done with a fraudulent intention, should be sufficient cause for an attachment in favor of the
The word “ assigned ” here means the transfer of the legal title to the property, and perhaps any conveyance of any interest therein; “ secreted ” means hidden in fact, and “ disposed of ” signifies any actual removal or disposition in fact of the property, other than those before mentioned.
It is true, the creditor may bo able in some cases to state positively the existence of one or more of these facts ; and when it can be done it would be sufficient, but it is frequently otherwise. If a fraud is intended, it will be perpetrated in the way most likely to avoid detection. A change of possession must always accompany the sale of personal property, and there may be an actual change or removal of the property from the possession of the debtor to a third person, with all the mdicia of ownership in such third person, without the actual transfer of the legal title, and for the benefit of the debtor. So the property may be removed from one locality to another, and beyond the observation or knowledge of the creditor, and yet neither be secreted nor assigned. In order, therefore, to prevent successful frauds by dishonest
Order affirmed.