Pratt v. Pratt

2 Chand. 48 | Wis. | 1850

Hubbell, J.

This is the common case of a writ of attachment, under the late statute of this state, issued on affidavit.

In the court below the writ was ' quashed, on motion, for insufficiency of the affidavit.

The question on error here is the’ same as there, to wit, how far it was necessary for the affiant to show, by facts and circumstances, that the defendants were all about fraudulently to remove or convey then property, so as to hinder and delay then creditors. There are three defendants. The affiant, after swearing to the indebtedness, states positively that the defendants (naming them all) “ are about fraudulently to remove and convey their property, so as to hinder and delay then creditors.” This statement must be taken as an expression of a belief or opinion, in other words, as a legal conclusion drawn from facts and circumstances within the affiant’s knowledge. The statute contemplates the expression of a belief as to the fraudulent intention, and properly requires that “the facts and circumstances on which such belief is founded ” shall be set forth for the judgment of the officer who allows the writ. The affiant proceeds to specify the facts and circumstances on which his principal statement is based, but not in as clear and intelligible terms as could be desired. A majority of the court understand him to say that he had been informed, and believed that Lewis Hayes and Josiali Hayes had said that they would remove and convey their property beyond his reach, and that they never would pay him; and further4, that Lewis Hayes told him, the affiant, that they (meaning the two defendants Hayes) would not pay the debt, and should sell and dispose of their property immediately, and remove it out of his reach. The first part of this statement is merely hearsay. The affidavits of the persons to whom the Hayes' made their declarations should have been given. The last clause is direct, and sufficient as to the intention of the two Hayes'; and if it had been coupled with a statement that the other defendant was insolvent, or out of the jurisdiction of the court, the affidavit might have been sustained.^* The statements may be strictly true, and yet the defendant Pratt might have had abundant means to pay, and the affiant have been perfectly secure. In the present shape, the affidavit is entirely consistent, not only with the affiant’s ample security, but with a collusion between him and the defendant Pratt to coerce the other defendants, by this proceeding, to pay the whole debt.

Proceedings by attachment are among the most summary and stringent known to the law, and they should be confined strictly within the limits of the statute by which they are authorized. In the present case it is easy to see, as in many others, that the process of the law might be perverted to purposes of oppression if the only proper rule in regard to its allowance were to be relaxed. Without imputing any improper motive to the plaintiff, the judgment below must be affirmed upon general principles.

Judgment affirmed with costs.

* Where a cause exists for an attachment against the property of one defendant in an action, the writ may issue against liis property, though no cause for issuing it exists as to his co-defendant, and on such writ any interest which he may have in any property with such co-defendant or others as joint owner may be seized, and the officer may, by virtue of it, take and retain possession of such property. Bank of Northwest v. Taylor et al., 16 Wis. 609.