31 S.C. 36 | S.C. | 1889
The opinion of the court was delivered by
On November 5, 1887, the plaintiffs sued the defendant on several claims, amounting in the aggregate to something over $1,000, and at the same time.the clerk of the court for York County, at the instance of the plaintiffs, and upon the affidavit of J. F. Reid, a member of the firm, issued an attachment against the defendant, alleging that he was disposing of his property and converting it into money, with intent to leave the State and defraud his creditors. Certain perishable property of the defendant was attached and sold under the order of the court by the sheriff, who was directed to hold the proceeds subject to the further order of the court. On December 14 (1887), this attachment was set aside upon defendant’s motion, on the ground of the insufficiency of the affidavit on which it issued.
On December 16, 1887, a second warrant of attachment in the same case was issued by the clerk upon additional affidavits of J.
From this order the plaintiffs appeal to this court upon the following grounds:
“1. Because when the attachment was issued the defendant had left the State, having gone to Florida to reside.
“2. That the affidavits upon which the attachment issued were sufficient to show that the defendant had disposed of all his pro.perty and left the State, with the intent to defeat the appellants’ debt, and were sufficient to establish a prima facie case at law.
“3. That said affidavits were a sufficient compliance with the provisions of the attachment law.
“4. That the facts proved showed collusion between the defendant and his brother-in-law, J. T. Sloan, to defeat the claim of appellants.
“5. Because his honor erred in1 holding that the ‘voluntary admissions’ of the defendant negatived any fraudulent intent towards the appellants.
*45 “6. Because the motion to vacate the attachment should have been decided in the light of all the evidence before the court.
“7. Because his honor erred in holding that hearsay cannot support an attachment, even when the would-be incompetent sources of information are stated.
“8. Because his honor erred in holding that- ‘as hearsay evidence to establish a prima facie case at law, such evidence should not be considered in determining the sufficiency of an affidavit upon which an attachment has been issued.”
Section 250 of the Code declares that “a warrant of attachment may be issued whenever it shall appear by affidavit that a cause of action exists against such defendant, specifying the amount of the claim and the grounds thereof, and that the defendant is either a foreign corporation or not a resident of this State, * * or that such corporation or person has removed or is about to remove any of his or its property from this State with intent to defraud his or its creditors, or has assigned, disposed of, or secreted, or is about to assign, dispose of, or secrete, any of his or its property with like intent, whether such defendant be a resident of this Státe or not,” &c. There can be no question that the allegation here was ample under the law, “that the defendant has disposed of the greater part of his property, and is about to dispose of the remainder thereof, with intent to defraud his creditors,” and “has left the State with like intent.” Indeed, we do not clearly see why it would not have been sufficient to confine the allegation to the last paragraph of absence from the State, in conformity with what, under the old practice, was called a foreign, as distinguished from a domestic, attachment.
We agree with the Circuit Judge, that the affidavits stated a cause of action, specifying, as required, the amount of the claim and the grounds thereof. This was done fully and most circumstantially in the first affidavit of J. F. Reid (Nov. 5, 1887), before the first attachment was issued. Afterwards, when the second writ was issued, on December 16, he made another affidavit, adopting and adding to the first one, saying, “and in addition to his affidavit in the above case made and filed in the office of the clerk of court on November 5, 1887, further makes oath,” &c., &c. There is not the slightest doubt of the identity of the affi
We also agree with the Circuit Judge, that there is nothing in the objection that the funds in the sheriff’s hands were not subject to attachment. After the first attachment was set aside, the money raised by the sale in that case ($272.52) belonged to the defendant, and might have been turned over to him, but the sheriff properly held it for the further order of the court. “The principle of custodia legis applies only where the officer is bound to pay the execution plaintiff, and not to cases in which he has in his possession, after satisfying the execution, a surplus. Such surplus is the property of the execution defendant, and being held by the sheriff in a private and not an official character, it may be attached in his hands.” See Drake on Attachments, (16th edit.), section'281, and cases cited; and 1 Am. and Eng. Encycl. Law, 916, and notes.
The only remaining question is, whether the allegation, in the language of the law, “was made to appear by the affidavit," or the warrant was irregularly issued. Certainly there can be no valid attachment without a sufficient affidavit, and whether sufficient-in the first instance, new facts or new grounds to sustain it cannot be brought before the judge in behalf of the plaintiff. We can hardly suppose it necessary to say anything as to the allegation that defendant disposed of his property with a view to leave the State. That has been shown by the event itself. The defendant has disposed of his property and he has left the State. Eac-ts cannot err. Then the only matter of inquiry left is, whether it was shown,- prima facie, that it was done with the intent to defraud his creditors, and especially the plaintiffs.
Fraudulent intent is not a physical entity which can be seen and felt, but a condition of the mind beyond the reach of the senses — -usually kept secret — not very likely to be confessed, and therefore can only be proved by unguarded expressions,.conduct, and circumstances generally. As was said in Myers v. Whiteheart, 24 S. C., 196: “The allegation that a person has done a certain act, with a fraudulent intent, must necessarily be based upon information or belief, and therefore, in such a case, the rule is
But inasmuch as the Circuit Judge took another view, and expunged from the affidavits all statements of information received from others, and especially from J. A. Erwin, the brother, and J. T. Sloan, the brother-in-law of the defendant, let us see how, in that view, the matter as to the fraudulent intent stands. On December 16, 1887, when the second attachment was issued, five affidavits on the part of the plaintiffs were before the clerk, as liis authority for issuing the writ. Admonished probably by the first failure, the affidavits seem to have been drawn with care and particularity. No. 1, J. F. Reid's first affidavit (Nov. 5) was before the defendant went to Florida, and states that he is informed and verily believes that the defendant had disposed of the greater part of his property, and is about to dispose of the remainder, with the intent to defraud his creditors, and gave circumstantially and in detail the sources for such beliefs ; that upon being informed by Dr. T. A. Crawford that defendant was disposing of his property with the intention of leaving the State and going to Florida, he went to see defendant, and upon being questioned about going to Florida, he gave “evasive answers,” saying he “did not know what he was going to do;” that J. T. Sloan (his brother-in-law and a resident of Florida) had attached everything he owned, &c. (omitting what Sloan and J. A. Erwin told him). No. 2, Reid’s second affidavit (December 12), states that
It appears from the affidavits all considered together, it seems to us, that when Mr. Reid first spoke to the defendant about the plaintiffs’ claim, on November 4, 1887, he had already disposed of most of his property, and was preparing to go to Florida, but that he concealed such purpose from the plaintiffs by giving “evasive answers;” that the appointment with J. T. Sloan for a meeting at Yorkville on November 14, to settle the plaintiffs’ debt, was made also for the purpose of misleading the plaintiffs, and giving him time to get off' to Florida, as shown by the fact that he did actually leave in a private convej’ance on Sunday, November 13, the very day before the meeting was to have taken place
The judgment of this court is, that the judgment of the Circuit Court be reversed, and that the case be remanded for such orders as may be necessary to carry out the conclusions herein announced.