Schrimpf v. McArdle

Wheeler, J. The Act regulating attachments, of the 11th March, 1848, expressly repeals certain Acts ¡therein named, (Hart. Dig. Art. 47,) but neither expressly, nor by necessary implication does it repeal the 143rd Section of the Act to regulate proceedings in the District Court. (Id. 795.) If, however, the affidavit made to obtain the attachment, contains all [371] the material, substantive matter set forth in the petition, the requirement of the Section last cited will have been complied with. Whether it does so in the present case it is unnecessary to inquire, for the reason that the attachment was, we think, rightly quashed, upon the other ground taken in the motion; the insufficiency of the bond. It was insufficient to support the attachment in that it does not correctly describe the parties or the suit. The only remaining ground of error relied on is the exclusion of the testimony of a witness, by whom it was proposed to prove that he had heard certain persons tell the plaintiff that defendant was running away. And we are of opinion that in this there was no error. The proposed evidence was hut hearsay. Besides, there was no evidence offered to prove that it was true, or that the plaintiff had any reason to believe it to be so. Nor is there any pretence that, as matter of fact, it was true. It is evident the plaintiff might have known, had he seen proper to inquire of those in charge of the defendant’s property, and entrusted with his business, that it was not true. This unfounded rumor, for such it seems to have been, afforded no justification, excuse or palliation, for resorting to the harsh measure of an attachment, when by taking the very natural and reasonable precaution of making proper inquiry, the plaintiff might have known that the defendant was but temporarily absent on ordinary business; and we think the Court very properly excluded it from the consideration of the jury. It appears, from the statement of facts, that the plaintiff proceeded by attachment for a larger amount than he had previously claimed was due him ; and that he caused property of the value of two thousand dollars, to be seized upon a claim of about three hundred, interrupting the busines of the defendant, and subjecting him to great inconvenience and expense. The proceeding appears to have been unfounded and wanton on the part of the plaintiff, as it was harsh, and injurious to the defendant. The verdict fell short of giving the latter full [372] compensation for the estimated injury; admitting the plaintiff’s demand, which, however, was contested. We see no reason to apprehend that injustice was done the plaintiff by the verdict; and are of opinion that the judgment be affirmed. Judgment affirmed.