Wm. R. Hart & Co. v. Cooper

Opinion, Me. Chief Justice Paxson : We are asked upon this writ of certiorari to review the proceedings of a warrant of arrest under the act of 1842. It is clear we cannot do so upon the merits. The certiorari brings up nothing but the record, of which the proceedings subsequent to the warrant form ho part. There is no provision in the act of 1842 that the proceedings, or any part of them, shall be filed of record. It follows that if the affidavit was sufficient to justify the warrant, the action of the court below must stand. The affidavit of George T. Barnes, one of the plaintiffs below, upon which the proceeding was based, contains near the close thereof the general averment that “ the said George P. Cooper and Charles H. Reynolds, doing business under the name and style of Cooper, Reynolds & Co., have fraudulently incurred the debt or obligation for which the above entitled suit is brought, within the meaning of the act of July 12, 1842.” Had the plaintiffs rested upon this general averment, their case would have been stronger than it is as now presented, for, when they proceed to set forth the facts upon which the charge that the debt was fraudulently contracted is founded, it appears that said charge was a mere conclusion of law from facts insufficient to support it. We think it conclusively appears that the fraud was not in the original contract — the order for the iron — -but in its subsequent breach- after the iron had been shipped by the plaintiffs to W. S. Pilling, in care of the defendants at their rolling-mill, near Harrisburg. Granted that the defendants had no right to use the iron until paid for, yet their [308] use of it was but a subsequent breach of their original contract; and, while such breach might have involved a fraud, it by no means follows that the original contract was tainted with the fraud; in other words, that the debt was fraudulently contracted. There may be many instances in which the breach of a contract is a fraud, or at least partakes of the nature of a fraud. There is no averment in the affidavit to connect the subsequent fraud with the original contract. Had there been such averment, that the fraud was contemplated and intended when the order for the iron was given, the case would have presented a different aspect and raised quite another question. As it stands, there is nothing upon the record — and we look no further — to support the allegation that the debt was fraudulently contracted. The proceedings are reversed.