Nelson v. Fuld & Co.

89 Tenn. 466 | Tenn. | 1891

Snodgrass, J.

The complainant sued out in the Chancery Court an attachment which was levied upon the goods of defendant. It issued upon allegation “that complainant is informed and believes that said Euld & Co. have fraudulently disposed of or are about fraudulently to dispose of their property,” and without averment that defendant company had done the one or was about to do the other.

On motion, the attachment was quashed by the Chancellor because the allegation referred to was not sufficient to authorize it. Einal decree being rendered, complainant appealed, and assigned error upon the action indicated.

Such a statement of information and belief that a defendant was about to remove his property beyond the limits of the State, without an actual averment that the fact was so, was held good in Lester v. Cummings, 8 Hum., 384.

If that case stands, the decree is erroneous; if not, the decree is correct, and must be affirmed.

The Court is of opinion that the question was incorrectly determined in that case, and the majority of the Court thinks it should be overruled. There and here there was and is no averment that defendant had taken or was about to take any action authorizing an attachment. It was not averred there that defendant was about to remove his property from the State, or here that the defendant company had fraudulently disposed of property or was about to do so, even upon information and belief.

The statement is only that the information has been bad and ike belief exists. If defendant should traverse the allegation by plea denying tbat complainant bad any such information or belief, be would deny all tbat is averred, and manifestly make no issue. If no issue can be made by denying all that is stated, it is difficult to see how such statement is material. Again, it may be true that a complainant is informed and. believes tbat a defendant is about fraudulently to dispose of property, but it could not be sufficient to sustain an attachment to show tbat be bad such information and believed, it without more, and if proving the allegation made could not sustain the attachment, the allegation is insufficient. Then, suppose an indictment for perjury upon the falsity of averment as to fraudulent conveyance is squght to be preferred. The averment is produced. It is not tbat there has been such a conveyance; it is only tbat complainant bad such information and belief. No indictment would therefore lie, and, if it would, it would be defeated upon proof that defendant bad heard the fact to be so and believed it. It cannot be pretended tbat such a statement is the equivalent of the averment of the fact upon information and belief, and the majority of the Court bolds tbat it is not proper to longer force such a meaning upon it; and, the question being directly made, now determines such construction to be erroneous, and overrules the 8 Humphreys case.

I dissent, because, -while as an original question I think the present the sounder view, the 8 Humphreys case has been long foil owed and acquiesced in, and I deem it the proper policy not to disturb it.

The result is an affirmance of the decree, with costs.