Bowers v. Beck

Opinion by Beatty, J. This was an action brought on a bond given to release property held under attachment. Bowers brought suit against G. W. Atkinson for some one thousand six hundred and sixty dollars, and at the time of filing his complaint, also sued out a writ of attachment. The attachment was levied on certain property, and the defendants in this action, in conjunction with defendant in the former action, executed a joint bond conditioned as follows: “ Now, the condition of this obligation is such, that whereas, a writ of attachment was issued against the above bounden George W. Atkinson, at the suit of L. S. Bowers, and certain of his goods and chattels have been attached under and by virtue thereof. “ Now, in consideration of the release of said goods and chattels from such attachment, if the said George W. Atkinson shall well and truly pay any judgment and costs that the said L. S. Bowers may recover against him, the said G. W. Atkinson, then this obligation to be null and void, otherwise to remain in full force and effect. “ G. W. Atkinson, [Seal] “ H. PI. Beck, [Seal] “ H. A. Kendall, [Seal].” Judgment was rendered for plaintiff. He attempted to make the same by issuance of execution, and failing to collect it of Atkinson — 143 — he demanded the amount from the sureties on the bond. They failed to pay, and Bowers instituted this proceeding. The complaint sets out the indebtedness of Atkinson to the plaintiff, the suing out of the writ of attachment, the making and filing the necessary affidavit, and undertaking to procure the issuance of the attachment, and that the sheriff to whom the attachment was issued made a levy on personal property. That, to procure the release of said property, defendants made, executed, and delivered the bond-sued on. That the property, on the delivery of said bond, was released. The rendition of the judgment, the failure to collect the same on execution, the demand on defendants, etc. The substantial defenses set up in the answer are: First. That the attachment under which the property was seized, was void for want of a sufficient affidavit. Second. That on trial it was found and adjudged that the facts alleged in the affidavit were not true, and therefore the goods were not legally attached. Upon the trial of the suit between Bowers and Atkinson, whilst the main issue was found for Bowers, it was at the same time determined that the attachment has been issued improperly, or without sufficient evidence, and the same was discharged. There is a question, however, in this Court whether the discharge of the attachment in the suit of Bowers vs. Atkinson was shown in the Court below. When this case was first called, appellants suggested a diminution of the record. This motion, and the affidavits filed in support thereof and in opposition, brought out the following facts : One of the counsel for appellants, after judgment for respondent, prepared a bill of exceptions, setting out fully the proceedings on the trial and exceptions taken by the appellants. An associate counsel for appellants, in looking over the bill of exceptions, thought there was an omission in the statement as prepared by the other counsel, and made an interlineation supplying that supposed omission. The counsel who first prepared the statement then took it to the Judge and procured his signature thereto. Some time afterwards, when the Court had adjourned for the term, the Judge’s attention was called to the bill of exceptions he had signed. He thought that part of it which was contained in the interlineation was not correct, and he struck it out by scratching his pen over the interlineations. He — 144 — makes an affidavit that he made this correction because he signed the bill of exceptions without examination, relying on the statement of counsel that it was correct and assented to by opposing counsel, when, in fact, the records of the Court clearly showed that appellants had never introduced any such evidence as was stated by the interlineation to have been introduced, and in fact, that defendants never introduced any evidence at all. This Court is called on to decide whether they will act on the bill of exceptions as originally signed by the Judge, or as corrected by him after the interlineation was struck out. As a general rule we think a bill of exceptions once signed by the Judge and filed among the records of the Court, (especially after the expiration of the term at which it was signed and filed) becomes a record in the case and beyond the control of the Judge. At least, it would be a very dangerous practice to allow amendments and alterations at a subsequent term of the Court. Still, we are not prepared to say, if a Judge inadvertently signs a bill of exceptions which states a fact which never existed, that it may not in any case be corrected. If the minutes of the Court or other documentary evidence should clearly show the mistake, probably it might be corrected in the Court below. But that point it is not now necessary to decide. In this case, it is evident that the Judge mistook the meaning of the clause he struck out. He struck it out because the record showed defendants had never introduced such evidence, nor any evidence. Retaining it in the bill of exceptions, it does not show, or purport to show, defendants introduced any evidence. We are inclined, then, to hold that the bill of exceptions should be considered as it was when signed by the Judge, and before this clause was stricken out. The bill of exceptions, then, shows that plaintiff “ offered in evidence the complaint, the affidavit for attachment, and writ of attachment, and return thereon, in the suit of L. S. Bowers v. Tennessee, alias G. W. Atkinson.” * * * * “ And the defendants, by their counsel, then and there objected to their introduction as evidence, on the ground that the said complaint showed upon its face that the cause of action sued upon was not one in which the plaintiff could legally invoke the aid and issuance of a writ of attachment; that said affidavit was irregular, and not in compliance — 145 — with the statute in such case made and provided, and insufficient to support the issuance of a writ of attachment; was irregularly and illegally issued; was void, and all proceedings thereon were illegal and void, and had been so adjudged by this Court, as shown of record in evidence.” After the word evidence, follows a direction to include the order dismissing the attachment as part of the bill of exceptions. That order is in these words: “ Defendants’ counsel moved to set aside attachment. The following witnesses were called on part of plaintiff: L. S. Bowers and William Berick; and on part of defendant, A. Jackson, John Dolson, Geo. W. Atkinson, and Kellem. Motion of defendant sustained, plaintiff excepted.” The words italicised and the direction to include the order dismissing attachment are those stricken out of the statement by the Judge, but which we shall consider as a part of the statement. But whilst we shall consider this part of the statement in the bill of exceptions, we do not think it shows that either the plaintiff or defendant introduced the judgment or order dissolving the attachment in evidence. The defendants, at the time this order was alluded to, were not offering anything in evidence. They were objecting to evidence offered by plaintiff. Whilst plaintiff was offering in evidence some of the papers filed in the case of Bowers v. Atkinson, it would seem (giving a fair construction to this part of the statement) defendants called attention to an order made in the same case, the existence of .which ought to operate on the mind of the Judge as a reason for rejecting the other papers. In other words, the defendants would se'em to have claimed that the record in Bowers v. Atkinson should not be produced piecemeal; but if offered, must be offered as a whole, and if the record considered as a whole failed to sustain plaintiff’s action, no part of it should be received in evidence. The statement does not show that there was an affirmative attempt on the part of defendants to introduce this order as evidence on their side. At best, if offered in evidence by defendants, it was only for the special purpose of showing the other papers offered should be rejected. That being the case, the respondents can only be entitled to a reversal of the case on one of two theories: first, that the papers and other evidence offered by the plaintiff and admitted by the Court failed to establish plaintiff’s cause of action, and entitled defendants to a nonsuit; or, second, — 146 — if all the papers which constituted a part of the proceedings in Bowers v. Atkinson were excluded, then the other evidence offered by plaintiffs was insufficient to support the action, and entitled defendants to a nonsuit. First, let us see how the parties stand, admitting these things to have been properly in evidence which were offered by the plaintiff and received by the Court. We have already stated what papers were offered in evidence by the plaintiff. Appellants contend, first, there could be no recovery on the bond because it was not stamped. To this we say the bond was one given in a legal proceeding, and did not need any stamp under the revenue laws of either the State or United States. The second point made is, that the bond was not in the possession or under the control of plaintiff when the suit was brought, but in the hands of the Clerk of the District Court for the Second Judicial District, and was not in plaintiff’s power until subsequently delivered to him by order of the Court. It is sufficient that the bond was made for the benefit of the plaintiff, was made payable to plaintiff, and was in fact his bond, whoever had the custody of it. The mere fact that a plaintiff does have the actual custody of a bond when suit is brought, is no reason for abating the action. If he is the legal owner of the bond, and can produce it at the trial, that is time enough. The third point of appellants on this branch of the case is, that the affidavit for attachment is so defective on its face as not to show any authority for the issuance of the writ; in other words, that the writ of attachment was void, and that being void the bond was also void. This objection naturally divides itself into two propositions : Was the attachment void ? If void, does it follow that the bond is void ? The statute says that the Clerk shall issue a writ, when an affidavit shall be filed, showing: “ First, that the defendant is indebted to the plaintiff in a certain sum (specifying the amount of such indebtedness) over and above all legal set-offs or counter claims, upon a contract, express or implied, for the direct payment of money, and that such contract was made or is payable in this Territory, and that the payment of the same has not been secured by any mortgage on real and personal property. Second, that the deponent — 147 — has good reason to believe, and does believe, that one or more of the causes set forth in the several subdivisions of the next preceding section actually exists at the time of making the affidavit, reciting the facts upon which such belief is founded.” We think there is no question that the affidavit in this case conforms to the statutory requirements in everything, except it may be in not “ reciting the facts upon which such belief is founded.” “ Such belief” in this case is the belief on the part of plaintiff that defendant had fraudulently, or was about fraudulently, to convey his property, to hinder and delay plaintiff in the collection of his debt. Plaintiff states that his reason for this belief “ is that the defendant herein has, as deponent is informed and believes, fraudulently conveyed, sold, and assigned certain teams, wagons, and property, for the purpose of hindering, delaying, and defrauding his creditor, this deponent, and as deponent is informed and believes, is about to fraudulently dispose of all the rest of his property, for the purpose of hindering, delaying, and defrauding this deponent, his creditor; and because the defendant herein on the twentieth day of April, a.d. 1865, informed this deponent that he had sold all his ("defendant’s) teams and personal property, and did not own a hoof of the stock, and would ‘ pay when he got ready,’ or words to that effect.” The law says the Clerk shall issue his attachment when plaintiff makes oath to his belief, and recites the facts on which his belief is founded. Now, does the language quoted recite any facts on which such an opinion might be founded? He recites that hé has been informed defendant had made a fraudulent conveyance. If this part of the affidavit is true, is not this a fact upon which he has a right to frame an opinion? But it may be objected that this is mere hearsay evidence, and that he should have procured the affidavit of his informant. Or it may be said that this is too general; that it was merely stating the general result instead of stating the particular facts which constituted or showed the frauds. Perhaps it is not necessary in this case to determine these questions. There is one circumstance he does state with particularity and upon his own information. That is the conversation he had with the plaintiff on or about the twentieth of April, 1865. That conversation — 148 — as detailed was not perhaps enough to establish fraud in defendant if not supported by other circumstances, but was certainly sufficient to create suspicion and a well founded belief in the mind of plaintiff that defendant had made a fraudulent disposition of his property. We think when a debtor tells a creditor he has disposed of all his property and will pay when he gets ready, it creates a very strong suspicion of fraud, and a creditor may from such language well draw the conclusion that a fraud has been committed. In the case of Cornell v. Lascells, 20 Wend. 77, a question was raised as to the sufficiency of an affidavit to support the attachment issued thereon. The affidavit was very similar in character to the present one. The Court was then composed of three Judges, C. J. Nelson, and Bronson and Cowen, Justices. Two of the Judges held the affidavit not sufficient. But in reversing the judgment, the Chief Justice says: “We might possibly have considered it sufficient to uphold the judgment until reversed;” thus intimating that although the facts stated in the affidavit were not of that conclusive character to justify the Justice who issued the attachment, still they tended to prove a fraudulent intent and would sustain the jurisdiction of the Justice until reversed. Mr. Justice Cowen dissents. In his dissenting opinion he says, among other things : “ The * * Act * * gives an attachment whenever a Justice is satisfied, on the facts and circumstances sworn to by the party, that the debtor has fraudulently assigned or disposed of his property, or is about to do it.” He then argues that the circumstances detailed in the affidavit are sufficient to show fraud, or at least if such circumstances had been detailed to a jury and they had found fraud on them, no Court would have been justified in setting aside the finding. He thinks the judgment should have been affirmed. Chief Justice Bronson, in giving an opinion on the subject of attachments, 7 Hill, pages 188-9, says: “ The facts and circumstances to establish the grounds on which the application for an attachment is made, must be verified by the affidavits of two disinterested witnesses.” We have quoted from the opinion because we have not the New York revised statutes to refer to. In 4 Hill, in the case of Faulkner, pages 598 to 602, he discusses what facts must be made to appear by the affidavit to make the attachment — 149 — valid, and concludes : “ Now, although the evidence was far from being conclusive, still it had a legal tendency to make out a case, in all its parts, for the issuing of an attachment. Enough was proved to call upon the officer for the exercise of his judgment upon the weight and importance of the evidence; and if he erred in the decision of a question thus fairly presented, the error would not be fatal to the proceedings. It is only when there is a total want of evidence upon some essential point -that the officer will fail to acquire jurisdiction.” Taking then the views expressed by Mr. Justice Cowen in the case cited from 20 Wendell, or those expressed by Chief Justice Bronson in the cases cited from 4 Hill, and they alike uphold the attachment. That is, they hold that such attachment is not void, but that the prima facie case for attachment may be rebutted by defendant in attachment. We think this is certainly good law. A party suing out an attachment may receive such information as convinces him beyond all reasonable doubt that a fraud is contemplated, and if he waits to get all the particulars so as to set them out in his affidavit, the fraud may be consummated and the property gone before he gets his writ. But if he is allowed to get the writ upon a general showing of the reasons he has for believing a fraud has been practiced, or is about to be practiced, he may, when the case comes on for trial,' be able to prove the fraud by satisfactory evidence. Our statute is quite different from the New York statute. The latter requires the facts to sustain the attachment to be proved by the affidavits of disinterested witnesses. Ours only requires the party to swear to his belief in the existence of certain main facts, and to state the subordinate facts on which that belief is founded. Certainly, that belief might be founded on information derived from others. We need not introduce the affidavit of others to prove the facts on which he founded his belief, but if a trial of the question as to the propriety of issuing the attachment arises, he can have the benefit of their testimony. The statute requires a person suing out an attachment to give bond for all damages caused thereby, if the proceeding by attachment is not sustained. This is sufficient protection for the defendant. We do not think great strictness should be required — 150 — in setting out the facts to authorize the issuance of the attachment. Not so much as in those States where the attachment serves in lieu of a summons, and authorizes the Court to enter judgment against defendant without actual service on him. This, we are of opinion, was not a void attachment, and the alleged insufficiency of the affidavit was no defense to this action. The attachment not being void, let us consider what would have been the situation of the parties, if the Court had ruled out the complaint, affidavit of attachment, writ of attachment, and return thereon, as offered by the plaintiff. The bond sued on recites that whereas an attachment was issued and certain goods have been levied on, etc. “ Now, in consideration of the release of said goods and chattels from such attachment, if the said G. W. Atkinson shall well and truly pay any judgment and costs that the said L. S. Bowers may recover against him, the said G. W. Atkinson, then this obligation to be null and void; otherwise, to remain in full force and effect.” Whatever the obligor recites in a bond to be true, may be taken as true against him, and need not be averred in a complaint on such bond, nor proved on the trial. That the goods were under attachment is clearly recited. Perhaps it is not so clearly recited that the goods are released when the bond is delivered, but the language used may mean that they are to be released. In that case, it appears to us, all the plaintiff has to do is to aver the release did take place at or after the delivery of the bond, and then prove the breach on the part of the obligors. If this be so, then there Avas no necessity for averring the existence of a complaint, affidavit of attachment, attachment, return, etc. This is the vieAV taken by the Chancellor of New York and concurred in by the entire Court for the correction of errors, except one Senator, in a case precisely similar to this. See Kanouse v. Dormedy, 3 Denio, 567. We entirely concur in the correctness of this decision. This, we think, disposes of the entire case. But appellants contend that although they did not, after the plaintiff closed his case, offer any testimony, yet they should stand in this Court just as if they had regularly offered in evidence the judgment of the Court dismissing the attachment, on the ground that plaintiff did not sus — 151 — tain by sufficient evidence his allegations to support the issuance of the attachment. We cannot think that the mere calling of the Judge’s attention to that order or judgment as a reason for rejecting other portions of the record of Bowers v. Atkinson, when offered by the plaintiff in this action, is equivalent to offering it in evidence by the defendants. But, even if it were in evidence, the writer of this opinion is unable to see how it would alter the result. The defendants have voluntarily entered into a bond to pay any judgment that might be recovered. There was no condition in the bond that they would pay provided the attachment was held good and a judgment rendered, but simply on condition that the judgment Avas rendered. Upon what principle can we interpolate the other condition ? The parties to the bond did not make any such condition; the statute authorizing the bond does not speak of any such condition. Doubtless, if a bond with such a condition had been tendered, the plaintiff would not have released the goods. The statute does not require him to release them, except on a bond with one single condition, and that is as to the rendition of judgment. There are only two principles upon which it can be contended that the bond would be void in case the attachment Avas void, or not supported by sufficient evidence where that issue was tried. The one is, that the goods of defendant Atkinson, being illegally held, the bond was given under a species of duress; the other, that it would be against public policy to support bonds given under such circumstances. At common law, the plea of duress only applied to cases where the person of the defendant Avas either held in custody, or threatened with violence or imprisonment. That plea' could not be sustained by any proof as to seizure or threats against property. Modern American cases have had a tendency to extend that plea, or one similar to it, so as to annul contracts made to avoid threatened destruction or detention of property. But those pleas have never been allowed except in extreme cases, when the danger of destruction, conversion, or asportation was imminent, and no other apparent method of saving the property. Here there was no such necessity. Atkinson had a bond to in — 152 — demnify him for all losses sustained by the improper issuance of the writ, and the property itself was in the custody of the law. (See Parsons on Contracts, vol. 1, pp. 319 to 322, and notes, etc., as to the general rules governing this defense.) We cannot see in what respect such bonds are contrary to the policy of the law. The defendant in an action of debt or assumpsit has his goods attached. Rather than wait to see whether the attachment can or cannot be discharged in the due course of law, to obtain the immediate possession of his goods, he gives a bond to the effect that he will pay any judgment obtained against him. Now, if a judgment is obtained against him, we see no great hardship in his having to pay it. We do not think it is violating any true policy of the law to make him and his sureties liable therefor, according to the letter of their bond. In the case of Caldwell v. Colgate and others, 7 Barbour’s Supreme Court Reports, page 253, it was distinctly held that a bond given to release property seized under a void attachment was itself void. And the case of Homan et als. v. Brinkerhoff, 1 Denio, 184, seems to be to the same effect. So, too, it would seem from references made by Mr. Drake in his work on Attachments, that it has been held in Louisiana, or at least strongly intimated, that if after goods were released from attachment by bond, it should be determined that attachment had been improperly issued, the sureties on the bond for the release of the property would be discharged. With regard to the New York cases last cited, the writer of this opinion must say he does not think they are good law. With regard to the Louisiana cases, not having access to the opinions themselves, nor to the Statute of Louisiana in relation to attachments, and scarcely any knowledge of the Civil Law which prevails in that State, I am unable to form any opinion about these cases. I think the true rule is, that when such a bond as the one under consideration is given, you cannot go back to inquire as to whether the attachment was regular or irregular. The only questions are, was the property released, and has a breach of the bond been shown. This is the view taken of such a case by the Supreme Court of the State of California, in McMillan v. Dana, 18 Cal. 339, and I think the correct view. Judgment affirmed.