Hurd v. Jarvis , 1 Pin. 475 ( 1844 )

Dunn, C. J.

A writ of error is prosecuted in this case to reverse the judgment of the district court rendered herein, on a motion by the defendant to dismiss the proceedings in the cause for reasons assigned, at the November term of said court in 1843.

The ground taken in the motion by defendant to dismiss, was, “that the facts set up in the affidavit of the plaintiff were not sufficient in the law to authorize the issuing of the writ of attachment.”

The plaintiff asserts in his affidavit “ That the defendant Jarvis is justly indebted to him, in the sum of $700 arising out of a contract under seal; that he (defendant) is about fraudulently to remove, convey, or dispose of Ms property, so as to hinder Mm, the said affiant, the creditor of said Jarvis, from collecting Ms said debt.” “The reasons and circumstances upon wMch the belief of the above facts is founded are, that the above-named defendant is now on his way down the Wisconsin river with a large raft of pine lumber, bound for the southern market, and is now removing the same out of this Territory. That said lumber is all the property said farms owns in. said Territory or elsewhere to the knowledge of affiant.”

We need not look any further than the affidavit in tMs cáse, no authority can sustain it. The patent defects, glaring upon its face condemn it, and no support in reason and law can be found for it. When the fact, “that a defendant is about fraudulently to remove, convey or dispose of his property to hinder or delay Ms creditors,” is a ground for proceeding in attachment; the facts stated to sustain the position, should show that the defendant is so acting with his property, out of its ordinary and necessary use, as to produce the reasonable conviction that a fraudulent disposition thereof is intended. To state in the affidavit, circumstances showing that defendant is using Ms property in the only way in wMch it could be of any value whatever, and strictly conforming to the usages and customs observed in that line of business by persons so engaged, furnishes no ground whatever to authorize the writ of attachment. As well might you say that the same position can be maintained against a merchant by stating the fact that he is daily making large sales of his merchandise in the customary way, by sending it to the best markets, and has no other property to the knowledge of the affiant. Such a construction would put a stop to some of our most useful and necessary branches of business, and deprive debtors of the means of meeting their contracts, by the exercise of enterprise and industry, the only capital which a poor man possesses.

From an inspection of the record in this case, we find that one of the plaintiff’s attorneys allowed the writ of attachment, as supreme court commissioner. Upon this we make the intimation, that if the affidavit had been otherwise good and the district court had sustained a motion to dismiss, upon an objection to the officer who allowed the writ, he being one of the plaintiff’s attorneys, this court would be much inclined to sustain the decision. The streams of justice should be preserved not only pure and unsullied, but free from even suspicion. The judgment of the district court of Dane county is affirmed, with costs.