Hockspringer v. Ballenburg
16 Ohio St. 304
Ohio
1847
Check Treatment

Lead Opinion

Avery, J.

The questions discussed in the present case arise principally out of the act to abolish imprisonment for debt. Swan’s Stat. 646. In this act, it is declared that *no person shall be arrested or imprisoned on any mesne or final process, except in cases therein specified. Section 3 of the act is as follows, to wit: “If any creditor, his authorized agent or attorney, shall make oath or affirmation in writing, before any judge of the Supreme Court, or court of common pleas, justice of tho peace, or clerk of either of said courts, that there is a debt or demand justly due to such oreditor of $100 or upward, specifying, as neai'ly as *258may be, the nature and amount thereof, and establishing one or more of the following particulars;” which particulars, set forth in the statute, are five in number; but it is necessary here to specify only one of these, which is in these words, to wit: “That ho, tho defendant (meaning the debtor) has assigned, removed, or disposed of, or is about to dispose of, his property, with intent to defraud his creditors.” The statute, after having described the affidavit to be made by the creditor, directs that he shall file such affidavit with the clerk of the court of common pleas of the proper county, and such clerk shall thereupon issue a capias which shall be served, and the suit instituted thereby shall be, in all respects, conducted in the same manner as if this act—the act above mentioned—had not been passed. The law on the subject of writs was greatly changed by this act, and since its passage, a compliance with its specific provisions is made indispensable, before the person of the defendant can be arrested. It is denied by the plaintiff in error that there has been such a compliance in the present case. In point of fact, the creditor, before ho took his writ, did, as it appears from the affidavit given above, make oath in writing and before the clerk, according to the language of the act, and to fulfill the direction, that by such oath, he should show a demand justly due him of $100 or upward; he stated in this affidavit that there was justly due him $940.28, over and above all discounts and payment on account of the same. This is certainly a full statement, and very plainly just what the law required. Then as to specifying, as nearly as may be, the nature and amount of the demand, *the amount is given exactly, and the nature of the claim indicated, as consisting of a note and an account, each described with the fullness and accuracy, suited to a declaration in the action.

The remaining words of section 3 of the act, so far as they embrace the fourth of the particulars therein specified, have given rise to the principal discussion in the case. It is urged in argument by the plaintiff’s counsel, that in this affidavit the creditor swears to a legal conclusion only, and not to any facts from which the conclusion could be drawn. The language of the affidavit is, “ that said Hockspringor is about to dispose of his property, with intent to defraud his creditors.” Is the phrase, “Hockspringer is about to dispose of his property,” a legal con■clusion only ? A similar form of expression is used in four of *259the five particulars specified in this section. In the first, “tho defendant is about to remove his property out of the jurisdiction.”

In the second, “ that he is about to convert his property into money.

In the fifth, “that he fraudulently contracted the debt,” for which suit is about to be brought.

In the fourth, the particulars giving rise to this discussion, “that he has disposed of, or is about to dispose of his property.” Had he sworn that the debtor had disposed of his property, then evidently he would have sworn to a fact. . It is true, the mind draws conclusions from certain facts; and in the case under consideration, the creditor may be supposed to have witnessed particular acts in the debtor which usually precede the disposition of property, and may have hoard his threats or expressions showing a design to dispose of it; and from these facts, have concluded that he would certainly dispose of his property. Now, would not the affidavit be defective under this law, if it should state these facts, and all others that could, by possibility exist, leading to the' conclusion, and should omit to state the conclusion itself, that is, “that the debtor was about to dispose of his ^property.” These facts are not named in the act, and do not constitute themselves the thing required; though, from such facts, what is required may properly enough be inferred. The mode of expression, repeated so often in this section of the statute, is one that frequently occurs in popular language. Its meaning can be sufficiently understood; and it is the debtor’s being actually about to dispose of his property, and not merely circumstances that lead the creditor to suspect or believe it, that should appear distinctly stated in the affidavit. Nor is it perceived how the following words, viz., “ with intent to defraud his creditors,” can be regarded as a legal conclusion, in the meaning of the objection. The intention with which an act has been done, is habitually treated by the accurate pleader as a fact, in cases where peculiar accuracy of expression is required. In many sections of tho criminal law this term is introduced, and in the indictments founded upon such sections, the intention is always set out by averment as a fact.

But, supposing it proper and necessary to state the provision as it appears in the act substantially, is the affidavit, nevertheless, defective, in not stating any facts to establish the particulars in *260this case required? Tbo facts here intended must be such as would furnish evidence more or less conclusive of the existence of that which is required, before a capias can issue. There is no doubt but it would be proper or allowable in given cases, for the creditor to state the circumstances upon which he based his affidavit. But though it may sometimes bo proper, still, as the statute has not required any such statement, can the affidavit, in no case, bo sufficient without something of that kind.

It must bo remembered that this law allows an arrest upon a capias ad respondendum, on the affidavit alone of the creditor, not requiring, as in the case of a ca. sa., an affidavit and other testimony. And further, that by law, the fact sworn to in the affidavit to hold to bail, must be taken as true, without going into the merits. From this it results that the affidavit establishes the partieular upon which the'.capias *is allowed. The argument further claims that the affidavit under consideration ought not to bo hold sufficient, because the debtor, if it bo so held, will not bo protected against an unjustifiable arrest, and the creditor, though guilty of swearing to a falsehood, could not be punished for perjury. Without stopping to inquire whether the introduction of additional statements into the affidavit, would be more or less likely to produce a conviction, in case of false swearing as to the necessary fact, it is sufficient to say that, as it seems to us, perjury may be committed in the making of such an affidavit, and that it may be punished.

The debtor was or was not about to dispose of his property; and if the charge was false, he would' be one competent witness to prove it so. There might, in many cases, bo no great difficulty in proving enough in addition, to establish the guilt before a jury; nor would- the debtor bo, of course, without the civil remedy. This objection we do not consider as fatal to the affidavit. Another alleged cause of error is that the affidavit does not set forth that the debtor had any property. This is not required, by the act, to be stated as a distinct proposition, but, in fact, it sufficiently appears in the affidavit.

The statute in the present case, both in the form and substance of the affidavit, has been followed. In setting out the cause to justify a capias, the very words of the statute have been adopted. And upon the examination of the whole of the affidavit, no defect is discovered to call for a reversal of the judgment. Several other *261causes of error are assigned, and one shown upon the record-One of these is that there is no indorsement on the writ of the amount in which the defendant should be held to bail.

It is supposed that the case of BEerf ot' al. v. Shirley et ah, 10 Ohio, 263, shows this to be a fatal error. It will be seen by a reference to the opinion given in that case, that this cause of error is not taken notice of, though all the others are separately examined ; and it would be inferred, from the opinion itself, that this cause was, from inadvertence, *named with the rest, and was not in reality decided. But, besides this, one of the members of the court, who assisted in deciding that cause, is a member of the court now, and recollects that no such principle was then decided. We do not regard this objection now as valid. In this case the sum sworn to was indorsed on the writ; and double the amount of that sum -is usual and proper for the bail bond, but no objection to it would exist if the amount were cither more or less. On the examination of all the causes stated in the motion to quash, and in the assignment of errors, we discover no cause for reversing the judgment. It will therefore be affirmed.





Dissenting Opinion

Read, J.,

dissenting. I can not agree with a majority of the court, that an affidavit in the language of the statute, that á debtor “ is about to convert his property into money for the purpose of placing it beyond the reach of creditors,” is sufficient to warrant a copias under the act to abolish imprisonment for debt.

That act abolishes imprisonment for debt, and the only cases in which a capias can issue, either as mesne or final process, are exceptions. Before a party can have the benefit of these exceptions, he must bring himself strictly within the provisions of the act— to authorize a capias on mesne process, the creditor, or authorized agent or attorney, must make oath or affirmation in writing, that the debt or demand is justly due—of $100 or upward, specifying as nearly as may be the nature and amount thereof, and establishing ono or more of the following particular's, which are the excepted cases warranting the capias. The excepted cases are those of fraudulent motive. A simple affidavit of the motioe, without specifying the overt indications which disclose such motivo, I hold does not establish the existence of such motive within the meaning of the act. The only earthly mode in which the motives of the heart can be ascertained by human intelligence is from the dec*262larations and acts of the party. The declarations and acts, then, of *the party, which disclose the motives which alone authorizo a seizure of his body, should be specified in the affidavit to estab. lish its existence under the act. The existence of a motive can not be established in law by a simple oath. To establish motive s you must prove declarations and acts and circumstances, which indicate the motive. A simple oath that a man had a particular motive, feeling, or interest, without any more, is no evidence in court; it proves nothing, is incompetent, and will be rejected. The only mode permitted by the law to look into the window of the heart and ascertain its feelings, motives, and intentions, is through overt acts, declarations, and conduct, which manifest the existence of the motive or feeling. There would be no safety or sense in any other rule, because there is and can be no other mode of determining the existence of the motive or intent. To make an affidavit, then, that a person did an act which, of itself, was no proof of the motive assigned, without proof of the declarations or acts which disclose it, does not establish the motive. But to make oath that a party is about to do an act with a particular motive, without stating declarations or circumstances which evidence the intent to do the act, or the existence of the motives accompanying the act which alone indicate its wrongful character establishes nothing, and can establish nothing. For a debtor to convert his property into money does not subject him to a capias, unless it be done with the purpose or motive of placing it beyond the reach of creditors. How can a creditor know that a debtor is about to convert his property into money, unless there be some declaration or act indicating that intent ? And if a debtor should convert his property into money, how does the creditor know that it is done for the put-pose of defrauding creditors, unless there be some declaration or act disclosing such purpose ? It requires both the intent to convert his property into money, and the purpose of placing it beyond the reach of creditors. And this must be established to authorize a capias. But the bare intent to convert is not sufficient, but, in the language of the act, he must be about to do

*it. The word about, means nearness of time, quality, or degree, or making preparations +o do a thing, or being actually engaged in doing something. It is one of those words which has a variety of meanings, according to the mode of its use. A man is about to start on a journey, or about his business. A man is about to *263convert his property into money; that is, he is near to doing it, or is making .preparations to do it. This last is .perhaps the true meaning of the word, as employed in the act. A debtor, then, must have the intent to convert, and be near to carrying it into execution, or must be making preparations to do so, with the fraudulent purpose to form the exception to the general act. The intent may exist, then, to convert property into money for the purpose of placing it beyond the reach of creditors, without authorizing a capias, unless that intent is near to being carred into execution, or unless the party is actually making preparation to convert with the fraudulent intent. The affidavit, then, should disclose the intent to convert—the dispositions or preparations to speedily convert, with the fraudulent intent—to warrant the capias. All these matters are only to be indicated by declarations and acts, being all matters of intent and motive; and unless the affidavit set forth the declarations and acts disclosing the intents and motives of the debtor, it establishes nothing—it is in fact not an affidavit at all, becauso'it has not the substance of an affidavit, as it proves nothing. It is not evidence to establish motive or intent, and could not be taken as evidence of motive- or intent, in any case where motive and intent were to be established. How, then, can it be said that such an affidavit establishes the motive and inteut, and authorizes a capias? To hold that such an affidavit warrants a capias, not only contradicts the express words of the act, as it establishes nothing, if we have regard to the rules of evidence or even possibility, but exposes the whole act to defeat, and subjects every debtor to the disposition of the conscience, or fears or suspicions of his creditor. There is no mode of convicting a creditor of perjury upon such an affidavit. Because it is impossible to ^determine whether the affiant believed what he made oath to or not; and further, it is impossible to dispirove that such intents and motives may not have been entertained by the debtor. A very suspicious or avaricious creditor would believe that his debtor intended to cheat him if he failed to pay on the day the' debt was duo, and would be ready to swear to all manner of motives and intents.. But if such a man had to swear to declarations or acts which indicate intent, ho-would have no power over an honest debtor to seize his person.

But what appears to be inconsistent is, that after judgment it is admitted by the whole court, and such has been the universal lino *264of decision upon the circuit, that the judgment creditor can not have a capias ad satisfaciendum, unless he make affidavit and also establish by other proof, to the satisfaction of the court or judge, the particular state of facts which will authorize the capias; one of which is the same as that which authorizes a mesne capias, that the judgment debtor is “about to convert his property into money to prevent its being taken in execution.”

The words of the statute to which this construction is given are, that “ the court or judge shall be satisfied by the affidavit of the applicant, and such other testimony as he shall present of the existence of either of the following particulars.”

The words of the statute for mesne capias are, “shall make oath or affirmation as to the existence of the debt, its amount and nature; and establishing one or more of the following particulars.”

Now what material difference is there between the phrase “satisfy by affidavit and such other testimony,” and to make affidavit of a fact, “ and establishing "? To obtain a capias ad respondendum, the statute requires that the creditor, etc., shall make affidavit of certain facts, to wit, that the debt is due, and its nature and amount, and establishing one of the particulars specified. The capias may then issue. How establish certainly but by proof? In the one case, it is by *affidavit and other testimony; fn the other, by affidavit and establishing. If establishing the existence of a fact in law means by proof, the phrases in meaning are the same. Why should the legislature intend to discriminate and make it more difficult to procure a capias after judgment than belore? In both instances the body of the debtor is seized, and for the same reason, to wit, fraudulent motives. But in the one instance the debt is established, and in the other it is not. Yet, after the debt is reduced to judgment a capias is not authorized, unless the fraudulent intent be established, both by affidavit of the creditor and other proof; and yet belore the debt is found due, it is held that the creditor may both establish the existence of the debt and the fraudulent intent by his own simple affidavit, that such motive and intent exists, without stating the acts or declarations indicating such motive and intent. • That is, that the legislature intended to be more lenient toward a debtor, where the debt was established by trial and judgment, guilty of a fraudulent intent, than toward a debtor guilty of a fraudulent intent before judgment. That is, the legislature intended to distinguish bo*265tween a fraudulent intent before judgment and a fraudulent intent after judgment, by requiring stricter proof to obtain a capias in the one instance than the other; and that, too, in requiring the least proof, where, upon general principle, they should have required the strongest. It can not be said that a capias or mesne process is less onerous, beeáuse, in that case, a party may not only be compelled to lay in prison for the satisfaction of the debt, but may be held in prison before the debt is established. The legislature never could have intended that the fraudulent motive, in either case, should be established by different kinds or different degrees of proof.

But, to obtain final capias, it would not be contended that simply swearing to the motive, without stating the declarations or acts which would indicate it, would be sufficient. Such swearing would not be the “.other testimony ” meant by the statute, nor would it be contended that the affidavit *of the party allog- [315 ing such motive or intent, without stating facts and circumstances, would be sufficient to satisfy the court or judge.

It would not seem, then, to be aright construction of the act, to hold that less degrees of evidence are sufficient to establish the fraudulent intent, which would authorize a seizure of the body upon mesne than upon final process. And I can not concur in the opinion that an affidavit, which states motives and intents, without the facts and circumstances which indicate thorn, is sufficient to establish their existence. I think to so hold violates the statute, and is opjjosed to reason,'and principle, in regarding that as an affidavit, in legal sense, which establishes no fact.

The ’construction which I give to this act, and the requirements which I hold to be necessary in an affidavit establishing motive and intent, have been given and required by the Now York courts, acting under a statute for the abolishment of imprisonment, for debt, similar to our own. I know there has been a difference of opinion in reference to affidavits for writs of ne exeat; but even when such affidavits have been held sufficient, it has always been accompanied with an admonition that it were far better to state facts and circumstances.

But 1 hold this is a question which may well stand upon reason and the impossibility of swearing to motive, apart from the overt manifestations disclosing it, and the meaning and requirements of the-statute.