76 Va. 318 | Va. | 1882
delivered the opinion of the court.
At a circuit court held for Fluvanna county, on the 10th of September, 1879, the following order was entered in this cause, which shows the subject of the dispute.
The plaintiffs having obtained an attachment from John A. Perkins, a justice of the peace for Fluvanna county, •against the estate of the said defendant, upon affidavit that the said defendant intended to remove his effects out of this State, so that there would probably not be therein sufficient effects of the said defendant to satisfy the claim of the plaintiffs when judgment is obtained therefor, should only the ordinary process of law be used to obtain such judgment: This day came the parties by their attorneys, and the court having heard the answer, is of opinion that “the attachment aforesaid was issued without sufficient cause, and doth order that the same be abated ”; and judgment was given the defendant for his costs. The plaintiffs excepted to the opinion and judgment of the court, and all the evidence in the case, being evidence introduced
The question upon which party the onus rested was left open in Claflin v. Steenbock & Co., 18 Gratt. 853. But in a. subsequent case, Wright v. Rambo, 21 Gratt. 158, it was held that upon a motion by the defendant to abate an attachment,, the onus is on the plaintiff to show that the attachment-was issued on sufficient cause, and he may therefore be required to introduce his evidence first.
Judge Joynes rightly said in Claflin v. Steenbock & Co., supra, “that the general policy of the attachment laws is to furnish a stringent remedy against the defendant, under certain circumstances which make such a remedy necessary to secure the rights of the plaintiff.” And again, “It is only the necessity of doing justice to the plaintiff, under such circumstances, that authorizes a departure from the general policy of the law, which secures to the debtor the control of his property until judgment has been obtained in the due course of proceeding, and from the general principle, dictated by natural justice and sanctioned by universal law, that a party shall have notice of all legal proceedings which are to bind either his property or his person.”
We think that no such necessity is shown by the evidence to have existed in this case. The defendant had given his bond to the plaintiffs' on the 1st of October, 1878, payable twelve months after date, for all that they claimed he owed them. They say that a part of the debt he had been owing them for several years. But they showed their confidence in him and respect for him, in taking his bond on twelve months’ time for what he owed them, without interest and without security; though in the claim which they set up against him, in his absence, they claim interest from the date.
But it is insisted that the language of the statute makes the right to the attachment depend altogether on the belief of the affiant. This subject was thoroughly discussed by the judges in Claflin & Co. v. Steenbock & Co., supra. Judge Joynes said: “ In one sense the law gives the attachment upon the belief of the affiant, and because he believes. But the law does not mean to make the rights of the defendant dependent ultimately upon the belief. What, then,” he asks, “is the 'sufficient cause’ for issuing such an attachment within the meaning of the 22d section ? (Ch. 148, Code of 1873.) Is it the existence of the probable fact sworn to by the affiant, and which, according to the policy
Whether the affiant had so partial and imperfect a knowledge of the facts as would have made his belief reasonable that the defendant intended to remove his property out of the State before the plaintiffs could get judgment against him, we do not know; but of this we are convinced, that the facts, as disclosed by this record, do not warrant such a belief, but strongly repel it. We are of opinion, therefore, that there is no error in the judgment, and that the same must be affirmed.
Judgment affirmed.