Pierse v. Smith

| Minn. | Jul 15, 1852

Fuller, C. J.

The laws of Wisconsin, under which this suit was commenced, after specifying the cases in which a suit may be commenced by Attachment (see Laws of Minnesota, 1849, p. 155, Sec. 3) provided, that “ the facts necessary to entitle a party to a writ-of Attachment should be proven to the satisfaction of a District Judge, or Supreme Court Commissioner, by the affidavitjof the plaintiff or some credible witness, stating therein the circumstances upon which the belief of such facts was founded.”

Proof, in the sense in which it is used in this act, means legal evidence, or such species of evidence as would be received in the ordinary course of judicial proceeding. 9 J. R. 75. It is not sufficient for the affidavit to detail mere hearsay or belief. These are not “ circumstances ” within the meaning of the law, which are competent proof of the facts necessary to entitle the party to the writ. The circumstances upon which the belief of the plaintiff, or a “credible witness,” are founded, must be proved otherwise than by swearing to information derived from others. Tallman vs. Bigelow, 10 Wend, 420. Smith vs. Luce, 14 Wend. 237.

The application for an Attachment is not addressed to the whim or caprice of a Judge. In granting or refusing it, he acts judiciously, and is bound to exercise a sound discretion. He must have evidence before him upon which to exercise it. He has no right to be satisfied, unless circumstances are sworn to in the affidavit sufficient to prove the requisite facts, so as to satisfy a reasonable man in the exercise of a sound judgment, -of their truth. Loder vs. Phelps, 13 Wend. 46. For the law on this subject, see 5 Taunt. 520. 1 Tynch, 287. 1 Cromp. and Jew. 401. 1 Marsh, 267. 6 Taunt. 460; 4 ib. 156. 1 Com. R. 40. 2 Wils. 385.

The proceeding by Attachment is an extraordinary remedy, highly beneficial when properly guarded, but not to be resorted to except in cases clearly within the provisions of the law. It is summary in its nature, granted in the first instance eos parte, and liable to abuse. Its effect may be disastrous to the defendant. It should not therefore be resorted to without good cause. It is proper that he should be protected against its improper use, and, to that end, the facts necessary to entitle a a party to a writ of Attachment are required to be proved to the satisfaction of the Judge before it issues.

Tested by these principles, the affidavit on which the Attachment -was granted in this case, will be found defective. The writ was applied for on the ground that Smith, the defendant was about to abscond. The circumstances sworn to, to prove this, are; that petitions had been sent to the President for his removal from the office of Secretary of the Territory, which was known to Smith; the inference of the plaintiff from the gravity of the charges against him, and the authenticity of the testimonials, that the removal would be made ; that there were at the time numerous creditors of the Government in and about St. Paul, having claims which should be paid out of the moneys appropriated by Congress for legislative expenses; that twenty-four thousand dollars were appropriated, and from the amount Smith was known to have received the fall before, and the .amount of drafts he was said to have received lately, he must have received tbe whole appropriation; that the plaintiff was told by Government creditors who had demanded money of him, that he was dilatory in paying the expenses of the Legislature, making various frivolous excuses, the principal oí which was that he had no cash, but had Government drafts; and that after awhile he went to Galena to get them cashed, as he avowed, and after his return suspended payment, declaring to some creditors that- he wanted ten, to others fifteen days, to ascertain how his accounts stood at Washington, before he paid out any more money, when he was withholding from the creditors their money. The rest of the affidavit is made up of the reaonings, inferences and belief of the plaintiff.

What was told him, must be disregarded, and also his inference as to the amount of the appropriation which had been received. Leaving out that, there is nothing left but the circumstance that an effort was being made to remove Smith from office on grave charges, well authenticated, and that there were creditors of the Government who ought to be paid out of the appropriation. To infer from these that the defendant Avas about to abscond, was to draw a conclusion not warranted by the premises. And if the whole affidavit were admissible as legal proof, such a deduction from it would still be far-fetched, and quite unsatisfactory to any discreet judge. On the argument, the plaintiff laid some stress upon the fact that Smith had since left the Territory. We cannot look beyond the affidavit, and-take judicial notice of a fact not proved, nor could the court beloAV.

There is no error in the District Court of Ramsey County, dismissing the suit for the insufficiency of the affidavit on which the Attachment Avas granted, and it is therefore affirmed Avith costs.