The opinion of the court was delivered by
MR. Justice McGowan.
On November 5, 1887, the plaintiffs sued the defendant on several claims, amounting in the aggregate to something over $1,000, and at the same time.the clerk of the court for York County, at the instance of the plaintiffs, and upon the affidavit of J. F. Reid, a member of the firm, issued an attachment against the defendant, alleging that he was disposing of his property and converting it into money, with intent to leave the State and defraud his creditors. Certain perishable property of the defendant was attached and sold under the order of the court by the sheriff, who was directed to hold the proceeds subject to the further order of the court. On December 14 (1887), this attachment was set aside upon defendant’s motion, on the ground of the insufficiency of the affidavit on which it issued.
On December 16, 1887, a second warrant of attachment in the same case was issued by the clerk upon additional affidavits of J. [44]*44F. Reid, T. A. Crawford, and T. A. Robertson. (These affidavits should be a part of the case reported.) Under this second warrant the aforesaid funds in the hands of the sheriff, $272.52, arising from the sale under the first warrant, were attached,- and on December 24, 1887, the defendant moved before Judge Witherspoon to set aside this attachment also, on the grounds that it was irregularly and improvidently issued: (1) that the affidavits failed to set forth a cause of action ; (2) that they failed to set forth facts within the personal knowledge of the affiants; (3) that they failed to state fully the sources of their information or the facts upon which affiants based their belief, &c.; that the facts stated were untrue; and that the property attached ($272.-52) in the hands of the sheriff under the order of the court, was not subject to attachment, &c. The judge holding that “as hearsay evidence would be inadmissible to establish a prima facie case of fraud at law, such evidence should not be considered in determining the sufficiency of affidavits upon which an attachment had issuedand disregarding the affidavits so far as the source„of information given was the statement of others, held that the affidavits were not sufficient to authorize the clerk to grant the attachment, and set it aside upon the ground that it had been irregularly issued.
From this order the plaintiffs appeal to this court upon the following grounds:
“1. Because when the attachment was issued the defendant had left the State, having gone to Florida to reside.
“2. That the affidavits upon which the attachment issued were sufficient to show that the defendant had disposed of all his pro.perty and left the State, with the intent to defeat the appellants’ debt, and were sufficient to establish a prima facie case at law.
“3. That said affidavits were a sufficient compliance with the provisions of the attachment law.
“4. That the facts proved showed collusion between the defendant and his brother-in-law, J. T. Sloan, to defeat the claim of appellants.
“5. Because his honor erred in1 holding that the ‘voluntary admissions’ of the defendant negatived any fraudulent intent towards the appellants.
[45]*45“6. Because the motion to vacate the attachment should have been decided in the light of all the evidence before the court.
“7. Because his honor erred in holding that hearsay cannot support an attachment, even when the would-be incompetent sources of information are stated.
“8. Because his honor erred in holding that- ‘as hearsay evidence to establish a prima facie case at law, such evidence should not be considered in determining the sufficiency of an affidavit upon which an attachment has been issued.”
Section 250 of the Code declares that “a warrant of attachment may be issued whenever it shall appear by affidavit that a cause of action exists against such defendant, specifying the amount of the claim and the grounds thereof, and that the defendant is either a foreign corporation or not a resident of this State, * * or that such corporation or person has removed or is about to remove any of his or its property from this State with intent to defraud his or its creditors, or has assigned, disposed of, or secreted, or is about to assign, dispose of, or secrete, any of his or its property with like intent, whether such defendant be a resident of this Státe or not,” &c. There can be no question that the allegation here was ample under the law, “that the defendant has disposed of the greater part of his property, and is about to dispose of the remainder thereof, with intent to defraud his creditors,” and “has left the State with like intent.” Indeed, we do not clearly see why it would not have been sufficient to confine the allegation to the last paragraph of absence from the State, in conformity with what, under the old practice, was called a foreign, as distinguished from a domestic, attachment.
We agree with the Circuit Judge, that the affidavits stated a cause of action, specifying, as required, the amount of the claim and the grounds thereof. This was done fully and most circumstantially in the first affidavit of J. F. Reid (Nov. 5, 1887), before the first attachment was issued. Afterwards, when the second writ was issued, on December 16, he made another affidavit, adopting and adding to the first one, saying, “and in addition to his affidavit in the above case made and filed in the office of the clerk of court on November 5, 1887, further makes oath,” &c., &c. There is not the slightest doubt of the identity of the affi[46]*46davit, and that it was before the clerk of the court when he issued the second warrant, who inserted in the warrant itself a very full description of the cause of action.
We also agree with the Circuit Judge, that there is nothing in the objection that the funds in the sheriff’s hands were not subject to attachment. After the first attachment was set aside, the money raised by the sale in that case ($272.52) belonged to the defendant, and might have been turned over to him, but the sheriff properly held it for the further order of the court. “The principle of custodia legis applies only where the officer is bound to pay the execution plaintiff, and not to cases in which he has in his possession, after satisfying the execution, a surplus. Such surplus is the property of the execution defendant, and being held by the sheriff in a private and not an official character, it may be attached in his hands.” See Drake on Attachments, (16th edit.), section'281, and cases cited; and 1 Am. and Eng. Encycl. Law, 916, and notes.
The only remaining question is, whether the allegation, in the language of the law, “was made to appear by the affidavit," or the warrant was irregularly issued. Certainly there can be no valid attachment without a sufficient affidavit, and whether sufficient-in the first instance, new facts or new grounds to sustain it cannot be brought before the judge in behalf of the plaintiff. We can hardly suppose it necessary to say anything as to the allegation that defendant disposed of his property with a view to leave the State. That has been shown by the event itself. The defendant has disposed of his property and he has left the State. Eac-ts cannot err.
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The opinion of the court was delivered by
MR. Justice McGowan.
On November 5, 1887, the plaintiffs sued the defendant on several claims, amounting in the aggregate to something over $1,000, and at the same time.the clerk of the court for York County, at the instance of the plaintiffs, and upon the affidavit of J. F. Reid, a member of the firm, issued an attachment against the defendant, alleging that he was disposing of his property and converting it into money, with intent to leave the State and defraud his creditors. Certain perishable property of the defendant was attached and sold under the order of the court by the sheriff, who was directed to hold the proceeds subject to the further order of the court. On December 14 (1887), this attachment was set aside upon defendant’s motion, on the ground of the insufficiency of the affidavit on which it issued.
On December 16, 1887, a second warrant of attachment in the same case was issued by the clerk upon additional affidavits of J. [44]*44F. Reid, T. A. Crawford, and T. A. Robertson. (These affidavits should be a part of the case reported.) Under this second warrant the aforesaid funds in the hands of the sheriff, $272.52, arising from the sale under the first warrant, were attached,- and on December 24, 1887, the defendant moved before Judge Witherspoon to set aside this attachment also, on the grounds that it was irregularly and improvidently issued: (1) that the affidavits failed to set forth a cause of action ; (2) that they failed to set forth facts within the personal knowledge of the affiants; (3) that they failed to state fully the sources of their information or the facts upon which affiants based their belief, &c.; that the facts stated were untrue; and that the property attached ($272.-52) in the hands of the sheriff under the order of the court, was not subject to attachment, &c. The judge holding that “as hearsay evidence would be inadmissible to establish a prima facie case of fraud at law, such evidence should not be considered in determining the sufficiency of affidavits upon which an attachment had issuedand disregarding the affidavits so far as the source„of information given was the statement of others, held that the affidavits were not sufficient to authorize the clerk to grant the attachment, and set it aside upon the ground that it had been irregularly issued.
From this order the plaintiffs appeal to this court upon the following grounds:
“1. Because when the attachment was issued the defendant had left the State, having gone to Florida to reside.
“2. That the affidavits upon which the attachment issued were sufficient to show that the defendant had disposed of all his pro.perty and left the State, with the intent to defeat the appellants’ debt, and were sufficient to establish a prima facie case at law.
“3. That said affidavits were a sufficient compliance with the provisions of the attachment law.
“4. That the facts proved showed collusion between the defendant and his brother-in-law, J. T. Sloan, to defeat the claim of appellants.
“5. Because his honor erred in1 holding that the ‘voluntary admissions’ of the defendant negatived any fraudulent intent towards the appellants.
[45]*45“6. Because the motion to vacate the attachment should have been decided in the light of all the evidence before the court.
“7. Because his honor erred in holding that hearsay cannot support an attachment, even when the would-be incompetent sources of information are stated.
“8. Because his honor erred in holding that- ‘as hearsay evidence to establish a prima facie case at law, such evidence should not be considered in determining the sufficiency of an affidavit upon which an attachment has been issued.”
Section 250 of the Code declares that “a warrant of attachment may be issued whenever it shall appear by affidavit that a cause of action exists against such defendant, specifying the amount of the claim and the grounds thereof, and that the defendant is either a foreign corporation or not a resident of this State, * * or that such corporation or person has removed or is about to remove any of his or its property from this State with intent to defraud his or its creditors, or has assigned, disposed of, or secreted, or is about to assign, dispose of, or secrete, any of his or its property with like intent, whether such defendant be a resident of this Státe or not,” &c. There can be no question that the allegation here was ample under the law, “that the defendant has disposed of the greater part of his property, and is about to dispose of the remainder thereof, with intent to defraud his creditors,” and “has left the State with like intent.” Indeed, we do not clearly see why it would not have been sufficient to confine the allegation to the last paragraph of absence from the State, in conformity with what, under the old practice, was called a foreign, as distinguished from a domestic, attachment.
We agree with the Circuit Judge, that the affidavits stated a cause of action, specifying, as required, the amount of the claim and the grounds thereof. This was done fully and most circumstantially in the first affidavit of J. F. Reid (Nov. 5, 1887), before the first attachment was issued. Afterwards, when the second writ was issued, on December 16, he made another affidavit, adopting and adding to the first one, saying, “and in addition to his affidavit in the above case made and filed in the office of the clerk of court on November 5, 1887, further makes oath,” &c., &c. There is not the slightest doubt of the identity of the affi[46]*46davit, and that it was before the clerk of the court when he issued the second warrant, who inserted in the warrant itself a very full description of the cause of action.
We also agree with the Circuit Judge, that there is nothing in the objection that the funds in the sheriff’s hands were not subject to attachment. After the first attachment was set aside, the money raised by the sale in that case ($272.52) belonged to the defendant, and might have been turned over to him, but the sheriff properly held it for the further order of the court. “The principle of custodia legis applies only where the officer is bound to pay the execution plaintiff, and not to cases in which he has in his possession, after satisfying the execution, a surplus. Such surplus is the property of the execution defendant, and being held by the sheriff in a private and not an official character, it may be attached in his hands.” See Drake on Attachments, (16th edit.), section'281, and cases cited; and 1 Am. and Eng. Encycl. Law, 916, and notes.
The only remaining question is, whether the allegation, in the language of the law, “was made to appear by the affidavit," or the warrant was irregularly issued. Certainly there can be no valid attachment without a sufficient affidavit, and whether sufficient-in the first instance, new facts or new grounds to sustain it cannot be brought before the judge in behalf of the plaintiff. We can hardly suppose it necessary to say anything as to the allegation that defendant disposed of his property with a view to leave the State. That has been shown by the event itself. The defendant has disposed of his property and he has left the State. Eac-ts cannot err. Then the only matter of inquiry left is, whether it was shown,- prima facie, that it was done with the intent to defraud his creditors, and especially the plaintiffs.
Fraudulent intent is not a physical entity which can be seen and felt, but a condition of the mind beyond the reach of the senses — -usually kept secret — not very likely to be confessed, and therefore can only be proved by unguarded expressions,.conduct, and circumstances generally. As was said in Myers v. Whiteheart, 24 S. C., 196: “The allegation that a person has done a certain act, with a fraudulent intent, must necessarily be based upon information or belief, and therefore, in such a case, the rule is [47]*47well settled that the sources of information, or the facts on which such belief is founded, must be stated.” This is undoubtedly a wise rule; but when in obedience to it, a party gives as the source of his information, the statement of another, giving his name, place, &c., we very much doubt whether in a proceeding like this, such statement should be brushed away as “incompetent,” because as “hearsay” it would not be admissible in a regular trial at law. We can hardly think that such was the intention of the rule requiring the sources of information to be given ; but that all the circumstances — especially upon a question of fraudulent intent where there may have been concert and combination — should be considered, giving to each the weight, great or small, to which it is entitled. Burch v. Brantley, 20 S. C., 506. It was certainly in conformity to the rule as to the sources of information to include these statements in the affidavits.
But inasmuch as the Circuit Judge took another view, and expunged from the affidavits all statements of information received from others, and especially from J. A. Erwin, the brother, and J. T. Sloan, the brother-in-law of the defendant, let us see how, in that view, the matter as to the fraudulent intent stands. On December 16, 1887, when the second attachment was issued, five affidavits on the part of the plaintiffs were before the clerk, as liis authority for issuing the writ. Admonished probably by the first failure, the affidavits seem to have been drawn with care and particularity. No. 1, J. F. Reid's first affidavit (Nov. 5) was before the defendant went to Florida, and states that he is informed and verily believes that the defendant had disposed of the greater part of his property, and is about to dispose of the remainder, with the intent to defraud his creditors, and gave circumstantially and in detail the sources for such beliefs ; that upon being informed by Dr. T. A. Crawford that defendant was disposing of his property with the intention of leaving the State and going to Florida, he went to see defendant, and upon being questioned about going to Florida, he gave “evasive answers,” saying he “did not know what he was going to do;” that J. T. Sloan (his brother-in-law and a resident of Florida) had attached everything he owned, &c. (omitting what Sloan and J. A. Erwin told him). No. 2, Reid’s second affidavit (December 12), states that [48]*48about November 11 there was an agreement to meet J. T. Sloan at Yorkville, November 14, for the purpose of settling the claim of plaintiffs; that Sloan failed to keep his engagement, and he, the deponent, has been reliably informed, and believes it to be true, that Sloan left the State for Florida on the Sunday previous (November 13) by private conveyance, &e. No. 3, Reid’s third affidavit (December 16), states that on the day after his previous interview with defendant (November 5), when he was arrested, defendant broke his arrest, and was recaptured in Columbia, S. C.; that the defendant has since left the State, and deponent alleges that his object in disposing of his property and turning it into money and then leaving the State was to defraud the plaintiffs; that he previously sold his interest under his father’s will to his sister, Mrs. Sloan, wife of J. T. Sloan, of Florida, as appears from deeds recorded. This deed was executed in January, 1887, and on the same day Mrs. Sloan conveyed to him 147 acres of land in York County, which he has since disposed of, &c. No. 4, Dr. T. A. Crawford’s affidavit (omitting what Sloan told him), states that on November 1, 1887, the defendant told him that he had sold all his property and intended going to Florida with J. T. Sloan, &c. No. 5, T. A. Robertson’s affidavit, states that on Thursday (December 8), while on the Charlotte & Columbia south-bound train, he met the defendant, who told him that he was on his way to Florida, and ^sked that the deponent would say to Holler & Anderson and R. T. Fewell & Co., of Rock Hill, to send their accounts to “W. L. Erwin, Pinellas, Florida,” and he would pay them.
It appears from the affidavits all considered together, it seems to us, that when Mr. Reid first spoke to the defendant about the plaintiffs’ claim, on November 4, 1887, he had already disposed of most of his property, and was preparing to go to Florida, but that he concealed such purpose from the plaintiffs by giving “evasive answers;” that the appointment with J. T. Sloan for a meeting at Yorkville on November 14, to settle the plaintiffs’ debt, was made also for the purpose of misleading the plaintiffs, and giving him time to get off' to Florida, as shown by the fact that he did actually leave in a private convej’ance on Sunday, November 13, the very day before the meeting was to have taken place [49]*49in Yorkville; that the defendant left hurriedly, and on his way to Florida (December 8), Thursday, met Mr. T. A. Robertson on the C. C. & A. Railroad, and, after informing him that he was on his way to Florida, requested him (Robertson) to inform certain of his creditors at Rock Hill (making no mention, however, of the plaintiffs) to send their accounts “to W. L. Erwin, Pinellas, Florida, and he would pay them,” or something of that character. From simply reading the affidavits, with attention to the dates, we cannot doubt that the defendant misled the plaintiffs as to the disposal of his property and his intention to leave the State, that the clerk was authorized to issue the attachment, and that it was error to set it aside as irregularly issued.
The judgment of this court is, that the judgment of the Circuit Court be reversed, and that the case be remanded for such orders as may be necessary to carry out the conclusions herein announced.