Lorrain v. Higgins

2 Chand. 116 | Wis. | 1850

Larrabee, J.

This is one of a numerous class of cases under tbe attachment law of tbe late territory, but now repealed by tbe revised statutes of tbe state.

Tbe first question is upon tbe sufficiency of the affidavit upon which tbe writ of attachment issued. It states that tbe defendant “ is making secret preparations to leave this country for Ireland,” and that be has procured a third person to manage bis grocery business. Tbe statute required tbe plaintiff’ to swear to bis own belief of tbe intent to abscond, and to set forth tbe facts and circumstances upon which that belief is founded. Now, tbe mere statement that tbe defendant was, in tbe opinion of tbe plaintiff, making secret preparations to leave for Ireland is not such a fact as would authorize tbe court to conclude that be was m reality making preparations to abscond. It is apparent that no fact has been stated; for we ask, at once, what were those preparations ? What has tbe defendant done to warrant tbe conclusion that be intends to abscond ?

Tbe plaintiff might have been entirely in error as to tbe character of these preparations, and still tbe court could not conclude that such preparations bad in fact been made. Preparations might have been made for a different object, tbe farthest removed from an intent to abscond; in fact, with an intent to fix bis residence more permanently in tbe state; and tbe plaintiff, clamorous for bis debt, and open to view with jealous eye every movement of bis debtor, might be ready to swear at once that these preparations were evidence, to bis mind, of an intent to abscond. The plaintiff should have stated what the facts were, constituting what he calls “prepar rations,” that the corat might know whether there was sufficient legal evidence upon which his belief was founded.

Another point presented, and the only one remaining that is necessary to decide, is, whether, upon the dismissal of the suit for the insufficiency of the affidavit, the court could render judgment against the plaintiff for costs. As a general rule, it is well settled that where there is no jurisdiction the court can give only the costs of the motion, and not the general costs of the suit. But it was the uniform practice of the late territorial district courts to give costs in similar proceedings, and we are not disposed, at this late day, to overrule this doctrine, and especially as we are not, in view of the repeal of this law, called upon to lay down a rule for the future. The affidavit in this case was colorable, at least, and sufficient to give the court jurisdiction to render judgment for full costs.

Judgment affirmed.