B. Lowenstein & Bros. v. Aaron ( 1891 )

Woods, J.,

delivered the opinion of the court.

The plea in abatement of the intervenors, filed under the second section of chapter 64, acts of 1884, opened the door to this inquiry, viz.: was the attachment sued out against the estate of the attached debtor by the attaching creditor collusive and fraudulent ? While the issue which the plea in abatement tenders is, in its general aspect, the existence or non-existence of the grounds of attachment contained in the affidavit of the original attaching creditor, yet, to confine the investigation with rigid inflexibility to the very letter of the inquiry, would, we think, defeat, in large measure, the beneficent purpose of the statute. The alleged grounds of the original attachment may be true as to the subsequently attaching creditors, true generally, but not true in any proper sense as to the original attaeher who bases his right to an attachment upon such alleged grounds. If the alleged grounds of attachment were collusively and fraudulently prepared and created by the original attaeher and the attached debtor, it should not be held, on such fraud and collusion being shown, that the attachment was rightfully sued out as to such collusive and fraudulent attaeher. In other words, the alleged grounds of attachment, when prepared and created by fraudulent collusion between the attaeher and the attached, however real the acts constituting the alleged grounds of attachment may appear to be, are to be held as no grounds for the attachment in that case, though they may be so held rightfully as to subsequent attachers in good faith. The original attaeher cannot, by fraudulent collusion with the debtor, manufacture grounds for attachment, and then avail himself of them to defeat junior attachers who take out writs, in good faith, predicated upon the very grounds alleged in the senior attachment.

The fourth section of this statute provides for an examination by a law court into the character of the debt claimed to be due in the attachment suit of the senior attaeher. If the debt is fictitious or simulated, in whole or in part, the junior attaeher, in addition to the ground of contest with the senior attaeher given in section two, may, if he so elect, test the genuineness of the debt so attached for in that trial, and without waiting to proceed in a court of equity. In the case before us, no such issue was made by the intervenors, and, therefore, with the validity of the debt of the senior attaeher, in whole or in part, the court below was not concerned, nor do we feel authorized to express any opinion on this point in' the present proceeding.

There was no error in the exclusion of the proffered eviclence of the witness, Elder, as to his connection with certain commercial agencies, and the rating, or want of rating, of the attached debtor by such commercial agencies. Such evidence, standing alone and dissociated from all facts on which such rating, or want of rating, was based, would be wholly inconclusive, and might prove very misleading to a jury.

Entertaining the opinion herein announced as to the scope of inquiry allowable to the intervenors, under their plea in abatement to the attachment under the second section of the statute — an opinion in harmony with the view contended for by counsel for the intervenors — still, we are unable to reverse the judgment of the court below, because of its refusal to charge the jury as prayed by the intervenors, or because of the peremptory instruction given for the plaintiff. 'While some of :the evidence creates presumptions unfavorable to .plaintiff, we do not feel warranted in saying that they rise higher than the region of mere suspicion; and, as no mere suspicions touching the collusive and fraudulent conduct of the plaintiff and defendant in the attachment, however strong they may have been, would have upheld a verdict for the intervenors, the court’s action in instructing for plaintiff peremptorily was not error.

As we have already remarked, whether plaintiff’s debt was fictitious and simulated, in whole or in part, is not involved in the present inquiry.

Affirmed.