Hughes, Adm'r v. . Person and Others

The allegation upon which the order, and attachment had been granted, was (so far as material here) as follows:

"That the said Thomas J. Person has disposed of and secreted his property, with intent to defraud his creditors."

His Honor allowed the motions, and the plaintiff appealed. The affidavit to obtain a warrant of attachment, must be explicit; and made, in general, upon positive knowledge of the deponent so far as to establish a prima facie case, Hoff. Prov. Rem. 14, 419 to 422, and at p. 48. Where it appears that it has been repeatedly held in N. Y., that an affidavit using the words of the Statute merely, without stating any facts, is insufficient, 1 Whitaker, 505 and Seq.

The affidavit for an arrest, must state the facts and circumstances, from which the officer granting the order, can draw his own conclusion respecting the sufficiency of cause for arrest, 1 Tiff. 241 — 2.

It must make out a prima facie case, 1 Tiff. 243. His Honor "vacated the order of arrest, and discharged the attachment" "in consequence of the insufficiency of the affidavit upon which they were issued." and from this there was an appeal.

There were many points presented in the argument at this bar, but we consider that only upon which the case was disposed of below, — the sufficiency of the affidavit.

The words in the Code are "removed or disposed of," c. The words in the affidavit are "disposed of and secreted, c." It was objected, not that the change of the words would make any material difference, but that it would not be sufficient if the affidavit were in the very words of the Code; for, that it is necessary that the affidavit should state thefacts which are supposed to make out the case, so that the Court can see from the facts set out, whether there has been a fraudulent disposition. The cases from the New York Courts seem to support the objection; and we follow these cases so far as to declare that when the plaintiff in his affidavit for the attachment or arrest, relies upon his apprehension of what the defendant is about to do, — as if he declare that he has reason to believe and does believe that the defendant is about to dispose of his property, c., he must state why he thinks so; in order that the Court may judge of the reasonableness of his fears. But where he swears that the thing has beendone, we do not see the propriety of requiring him to specify how it has been done, although it would be prudent for him to do so when the facts are known. But it might be impossible for him to do so; for in fraudulent dispositions, concealment and deception are common. It might therefore operate to the prejudice of the plaintiff to require him to specify; for, while he might be satisfied of the fact generally, he might be unable, for want of time, to state particulars. And if he should undertake to specify, and should be mistaken, he might be confined to his specifications, when he could prove other particulars. On the other hand, there can be no hardship upon the defendant; for if the plaintiff swears generally that the defendant has frauduently [fraudulently] disposed of his property, when he has not, the plaintiff may be indicted for perjury; and upon the defendant's general denial of a general allegation, he would be entitled to a discharge unless the plaintiff would then tender particulars and join issue. There is error.

Let this be certified, c.

PER CURIAM. Error.

NOTE. — The same decision was made in John J. Long v. Thomas J.Person, and W. T. Stephenson v. Thomas J. Person; — argued by the counsel in the case above.