North v. McDonald

DRUMMOND, District Judge. The defendant being a citizen of this state and the plaintiff a citizen of another state, and as the attachment was not only served on property, but the defendant was also personally served with process, in accordance with the rule laid down in Toland v. Sprague, 12 Pet [37 U. S.] 300, and the act of congress of March 14, 1848 (9 Stat. 213) this court can take cognizance of the case. There is no doubt there must be an intentional concealment to avoid the service of process, and the question is did the intention exist in this case coupled with the actual concealment or avoidance. The evidence might undoubtedly be more conclusive, but, after a careful examination, I have become convinced that the attachment properly issued. It is to be remarked that in the great majority of these cases, the evidence will consist of various circumstances and incidents, none of which in themselves may be sufficient, but which, when taken altogether, produce the conviction as to the intention. Men, when they seek to avoid the service of process do not publicly announce their purpose, on the contrary, they would be more likely to declare the reverse. We must judge from their acts, and it seems to me clear that these repeated falsehoods were not told by the clerks without the defendant’s knowledge and instructions. The defendant was deeply embarrassed; creditors were calling on him daily and pressing their claims. He had transfen-ed his goods. He left town suddenly without informing them where he was gone. His clerks, and particularly his brother, who had charge of his business, misled and attempted to deceive his creditors as to where he was. It appears to me that the facts warrant the belief that he left to avoid the service of process, and that he returned because of the service of attachments upon his property. If he left for that purpose, requesting false information to be given of his movements, he concealed himself, in my opinion, just as truly as though he had hid himself in a cave. Of course I do not refer to cases where a person leaves his home or place of business with the intent to depart from the state, or to remove his property out of the state, but to the case of a person concealing himself within the state which can be done as effectually at a distance as near at home. It has been objected that a process should in point of fact have been first issued and an attempt made to serve it before the attachment would lie. That part of the statute we are now considering authorizes an attachment to issue in case “such debtor conceals himself, or stands in defiance of an officer, so that process cannot be served upon him.” It comprehends two classes of debtors and in contradistinction — the debtor who conceals himself so that process cannot be served upon him, and the debtor who stands in defiance of an officer so that process cannot be served. The objection goes the extent of maintaining that there can be no other evidence of concealment except what follows or is attended with attempted service of process. If this were the meaning it may well be asked why the statute has a double aspect. There may be some reason for saying that the last clause implies that the debtor must defy the officer that has the process, but however that may be, I think in the other case he is not required to conceal himself from an officer who has a writ, but to conceal himself so that the attempt to serve a process would be useless. If the rule were otherwise, a creditor would be obliged to follow a debtor into any county in the state where the latter concealed himself, — that is, he would be required to perform an impossibility — because the concealment implies the creditor does not know where to follow him, — and if it turned out afterwards that the debtor was concealed in a county different from his residence, or that where process was issued, It would always be a fatal objection to an attachment in this class of cases, that process was not issued against the defendant in the county where he was. Because the same argument would ever hold good, viz., — non constat, but if process had been issued in the county where the debtor was, it might by possibility have been served on him. Morgan v. Avery, 7 Barb. 656; Genin v. Tompkins, 12 Id. 265. Issue and judgment for the plaintiff.