Mense v. Osbern

Tompkins, Judge, delivered the opinion of the court. Osbern sued Mense in the circuit court, where he had a judgment; and Mense brings the cause by writ of error into this court, to reverse that judgment. Osbern filed an affidavit and obtained an attachment against the goods, &c. of Mense, Mense filed a plea in the nature of a plea in abatement putting in issue the truth of the affidavit upon which the attachment was sued out. The circuit court, on motion [546] of the plaintiff, dissolved ihe attachment and discharged some persons who had been summoned as garnishees. The defendant excepted to the opinion of the court dissolving the attachment. The court then proceeded to try the cause on the plea of non-assumpsit, which had been ^ defendant, and, as above mentioned, gave the Osbern, a judgment. The act of the 6th February, 1837, supplementary to an act entitled “An act provide for the collection of debts by attachment,” (page 9,) gives to the defendant the right to put in issue the truth of the affidavit, upon which the attachment was sued out, and provides that if the issue of fact be found for the plaintiff, the cause shall then proceed as m other cases 0f attachment; but if the said issue be found for defendant, the suit shall be dismissed at the cost of the plaintiff, and the said plaintiff shall be liable upon his bond, as in other cases by this áct. FebruaryB6”Ct837, relating to ments, it is error to^Usso\v™an°at-tachment on motion of the plain-the’consentaófSthe defendant, alter plea in the nature ment*filed” and*3" proceed to’try the cause on the plea in bar- The act permitting defendant to file a plea in na-1w e ms fntended”tci provide a remedy defendant m case rashly make an affidavit unfounded in fact, and the act would be almost useless, if the defendant by dissolving the attachment after^is-truth of plaintiff’s affidavit. When the legislature gave this extraordinary remedy k.v attachment to creditors, it seems they intended to provide a remedy for the defendant in case the plaintiff should rashly make an affidavit unfounded in fact. This provision in favor of the defendant would have been almost useless if the plaintiff is to be allowed to defeat by dissolving the attachment after the defendant has t ■ issue,the truth of the affidavit. It is not enough that plamtift lets Joose the property oí the deiendant by dissolving the attachment, when he finds the defendant is a^out to procure it to be dissolved. The statute declares that his suit shall be dismissed at his cost; but the circuit court, by its dissolution of the attachment, and there-,b^ depriving the defendant of the opportunity of prov-mg the falsehood of the affidavit, fixes the costs ot the suit on the defendant, and the plaintiff recovers his money ag soon ag honest an¿ fajr plaintiff would have done who proceeded to collect his debt without the aid of the oppressive writ of attachment. Such, evidently, was not the intention of the legislature. It meant to punish him by the infliction of the payment of costs, and by delaying him in collecting his debt for attempting to use this extraordinary remedy by attachment when there was no occasion for it. This suit was brought on a bill of exchange, drawn by the defendant, Mense, on one Walker, in favor of the plaintiff below. Walker accepted the bill, but failed to pay when it became due. Mense, the plaintiff in error, promised to pay when he could collect the money, and stated that he expected to be able to collect the money [547] from Walker and others in three months. On the part of the plaintiff in error, it is contended that he, having received no notice of the non-payment by Walker, and therefore not being liable to pay, bis promise to pay on conditions must be considered binding only when he should have collected the money; but the circuit court instructed the jury that the promise to pay was absolute in effect. No evidence was given to show that notice had not been given to Mense of the non-payment by , 9 , . . . í-' J the drawee; and irom his promise to pay, the tion might fairly arise that he had received notice of. (See Chitty on Bills, p. 316, and cases there cited.) In the instructions given on this head by the circuit court, I see no error; but because, on the motion of the tiff the attachment was dissolved, and the defendant he-low, plaintiff here, was deprived of an opportunity of trying the issue made on fhe truth of the affidavit of the defendant in error, and thereby lost all the advantage which he might have derived from a verdict m his favor, this judgment ought, in my opinion, to be reversed, such also being the opinion of Judge Napton, it is versed, and this cause is remanded to the circuit court, and that court will proceed in the cause in conformity to this opinion. 1 Suit brought on a bill of exchange, 4ra'7n d®£®n: dantonone W.in of plaintiff. bill was ac-cePted. W. but due. Defendant, pro-Saitt'fftlma* mount of the*bili when he could oolie^tÍil? expected to col-the money °th~ months. Thecir-cuitcourt instruc-the jury, that the promise of defendant to pay was absolute in effect. Held, that as no evidence was given to show that notice had not been given to defendant of the non-pajment by W. and that aB from the promise of defendant to pay, the presumption might fairly be raised that he had received notice thereof, the circuit court did not err in giving the instruction.