Fitzgerald v. Belden

49 How. Pr. 225

Opinion

Daly, C. J.

The affidavit in this case was not sufficient to authorize ah attachment. The books secreted constituted that kind of property which is subject to levy, being property of that physical and tangible nature which could be seized by the sheriff, and sold and delivered by him to purchasers. If it had appeared that the secreting of the books by the defendant’s employe was by the authority or with the knowledge and approbation of the defendant, Belden, then it would show a case in which the defendant had or was about to secrete his property with an intent to defraud his creditors. Such an intent on the part. of the defendant cannot be assumed from the act of his employe without connecting the defendant by some evidence with the act, and there is nothing in the affidavit to show that he had any knowledge of it. There is not only this defect in the affidavit but it is not even directly sworn to, but is referred to as contained in another affidavit without stating that that affidavit is anywhere on file, or without a copy of the affidavit being annexed to the affidavit on which the attachment is ordered, which is a kind of evidence altogether too loose to be received as proof of the fact relied upon for the attachment, if the fact were otherwise sufficient. The attachment must, therefore, be discharged, on the ground that it was not warranted by the affidavit.