Orr v. Hamilton , 1 Gunby 27 ( 1885 )

Gunby, J.

To sustain an attachment which has been rebutted by defendant, plaintiff must prove facts that show a fraudulent intent on the debtor’s part. 32 An. 340.

2. The disposal of property before plaintiffs debt was- contracted, even though it was irregular, furnishes no ground for attachment, nor will the imperfect keeping of defendant’s books, or his repeated and evidently insincere promises to pay when he was unable to do so, furnish grounds to attach. Debtors who are insolvent should candidly confess it and invoke the remedies provided by law for their relief, but where it clearly, appears that, defendant’s uncandid promises were prompted by fear and not by fraud, the attachment will be dissolved.

3. Paragraphs 4 and 5 of C. P. 240, are directed against the unfair disposal of the property of the debtor, not the payment of honest debts with money, although the debtor have not enough means to pay all his debts. Insolvency proceedings, and not attachments, furnish the creditor with the proper remedy for such a case.