Reynolds, C.
These cases' were heard together as one cause as there is no substantial difference between them, and they are in brief this: Suits by attachment were commenced against the defendant before a justice of the peace in Ulster county, upon the ground that he had departed from the county of Ulster, where he last resided, and from the State" of Hew York, to defraud his creditors, and the question is whether the affidavits upon which the attachments were issued' gave the justice jurisdiction. Judgments were given for the' plaintiff by the justice, which were reversed by the County Court of Ulster county. Upon appeal to the Supreme Court the judgment of the County Court was affirmed, and upon leave duly granted, we have the cases beforé us for -final ■ decision.
The affidavits upon which the attachment in the case of Schoonmaker was issued, sworn to August 3d, 1863, sufficiently stated that the defendant was at the time indebted to-his firm upon contract, in the sum of $142.50, and, thereupon, he applied for an attachment on the ground that Spencer had departed from the county of Ulster, where he last resided, and from the State of Hew York, with intent to defraud his creditors. It is then stated, that on the 17th of June, 1863, Spencer purchased the goods of the plaintiffs to the amount of $142.50 on a credit of thirty days, and upon the false representation that he was in the habit of purchasing for cash only, and that his stock in business was paid for. It is further sworn, that soon after,this purchase, and before the thirty days’ credit expired, Spencer departed and has not since returned. That his stock in his store or place of busi
ness was running down and disappearing, and that so far as the plaintiff Schoonmaker could learn from other creditors, it was all purchased on credit and not paid for, and it is further added that the agent of Spencer refused to do anything toward paying or securing the plaintiff’s debt, and they believe that the said Spencer departed with the intent to defraud his creditors, and that Schoonmaker & Co. would be in danger of losing their debt unless an attachment issued.
In the case of Derrenbacker, the affidavit showed a demand of $78.30 or more, and that the attachment was applied for upon the same ground as in the case of Schoonmaker. It is added also, that the goods were purchased on the 12th of June, 1863, to be paid for on the first of July, then next. It is then averred, that Spencer then and there falsely represented that he was in the habit of purchasing his goods for cash, and that his stock was fully paid for. That at the time Spencer purchased other merchandise of different persons on credit, and on like representations, and was at the time indebted to more than the value of his property. It was further said in the affidavit of Stephen, in the suit last mentioned, that in the preceding month of June, Spencer left the county on pretence of a few days absence, and had not returned when, on the fourth of August, the affidavit was made. It is then further added that the deponent believed that Spencer continued absent with an intent to defraud. It is to be also said that the defendant did not appear in the Justice’s Court, and the judgment of that court in favor of the plaintiff has been reversed for want of jurisdiction, and that is the question we are now called upon to consider.
In order to defeat the jurisdiction of the justice, it must be made to appear that there is a total want of evidence upon some essential point. The creditor is not required to furnish conclusive evidence of the facts relied on, but it is sufficient if the proof had a legal tendency to make out in all its parts a case for the issuing of an attachment, and as the question is one of jurisdiction, I am not able to see why any different rule applies, whether it arises in a direct or collateral pro
ceeding. The
dicta
to the contrary appear to me groundless. If the facts and circumstances disclosed fairly called upon the magistrate for an exercise of his judgment upon the weight of the evidence, even if he err, the proceedings will not be void for want of jurisdiction, no matter in what form the question is presented.
(Matter of Faulkner,
4 Hill, 598;
Van, Alstyne
v.
Erwine,
Sheriff, 11 N. Y., 331.) This rule of construction does not appear to have been seriously questioned for thirty years, but has been reaffirmed and approved in very many adjudged cases. It has also been the uniform practice of the courts in reviewing the proceedings had before justices of the peace, to regard them with marked indulgence and liberality in the furtherance of the ends of justice, and, if possible, sustain them by every reasonable and warrantable intendment." It appears to me that the Supreme Court applied a very different rule to the case before us, and for that, among other reasons, I am not able to concur in the ' judgment pronounced. It is supposed that the affidavit upon which the attachment issued in the case of Derrenbacker is somewhat feebler than that in the case of Schoonmaker, but I see no substantial difference, and, in my opinion, both are sufficient ■ to • sustain the proceedings of the justice. There was no question in either ca?.e in respect to the fact of, the existence of the debt. In the one case it-was contracted on the 12th of June, 1863, to be paid on the first of July following, and in the other, on the- seventeenth of June, upon á credit of thirty days. The application was made in each case on the following fourth of August, upon the ground that Spencer had departed from the county of Ulster, where he last resided, and from the State of Hew York, with intent to defraud his creditors. The affidavit of Schoonmaker states positively that Spencer purchased the goods “ on the false representations that he was in the habit of purchasing for ■cash only, and that his stock in business was paid for.” Here, •certainly, is proof that the goods were obtained upon false representations. It is further added in the affidavit “that ■very soon after such purchase, and long before said thirty
days expired, he departed as aforesaid and has not since returned; that the stock in his store or place of business is running down and disappearing.” 'It is then added that the stock of Spencer, so far as can be learned from his other creditors, was all purchased on credit and not paid for, and it is further positively averred “that the agent of the said Spencer refuses to sell or turn out any of said stock toward the payment of the demand of H. Schoonmaker
&
Co., and that the stock of said Spencer on hand is insufficient to pay his indebtedness,” and then follows the belief of the deponent that the departure was with the intent to defraud.
The learned judge who delivered the opinion of the Supreme Court could discover nothing in the affidavit inconsistent with the departure of the defendant with an honest intent. It is said, for aught appearing in the affidavit, he may have gone off openly, and was detained by illness, and it seems to have been assumed that a creditor applying for an attachment under such circumstances must clearly negative all suspicion of honesty. This is net the rule, and the assumption has neither reason nor authority to support it.
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Reynolds, C.
These cases' were heard together as one cause as there is no substantial difference between them, and they are in brief this: Suits by attachment were commenced against the defendant before a justice of the peace in Ulster county, upon the ground that he had departed from the county of Ulster, where he last resided, and from the State" of Hew York, to defraud his creditors, and the question is whether the affidavits upon which the attachments were issued' gave the justice jurisdiction. Judgments were given for the' plaintiff by the justice, which were reversed by the County Court of Ulster county. Upon appeal to the Supreme Court the judgment of the County Court was affirmed, and upon leave duly granted, we have the cases beforé us for -final ■ decision.
The affidavits upon which the attachment in the case of Schoonmaker was issued, sworn to August 3d, 1863, sufficiently stated that the defendant was at the time indebted to-his firm upon contract, in the sum of $142.50, and, thereupon, he applied for an attachment on the ground that Spencer had departed from the county of Ulster, where he last resided, and from the State of Hew York, with intent to defraud his creditors. It is then stated, that on the 17th of June, 1863, Spencer purchased the goods of the plaintiffs to the amount of $142.50 on a credit of thirty days, and upon the false representation that he was in the habit of purchasing for cash only, and that his stock in business was paid for. It is further sworn, that soon after,this purchase, and before the thirty days’ credit expired, Spencer departed and has not since returned. That his stock in his store or place of busi
ness was running down and disappearing, and that so far as the plaintiff Schoonmaker could learn from other creditors, it was all purchased on credit and not paid for, and it is further added that the agent of Spencer refused to do anything toward paying or securing the plaintiff’s debt, and they believe that the said Spencer departed with the intent to defraud his creditors, and that Schoonmaker & Co. would be in danger of losing their debt unless an attachment issued.
In the case of Derrenbacker, the affidavit showed a demand of $78.30 or more, and that the attachment was applied for upon the same ground as in the case of Schoonmaker. It is added also, that the goods were purchased on the 12th of June, 1863, to be paid for on the first of July, then next. It is then averred, that Spencer then and there falsely represented that he was in the habit of purchasing his goods for cash, and that his stock was fully paid for. That at the time Spencer purchased other merchandise of different persons on credit, and on like representations, and was at the time indebted to more than the value of his property. It was further said in the affidavit of Stephen, in the suit last mentioned, that in the preceding month of June, Spencer left the county on pretence of a few days absence, and had not returned when, on the fourth of August, the affidavit was made. It is then further added that the deponent believed that Spencer continued absent with an intent to defraud. It is to be also said that the defendant did not appear in the Justice’s Court, and the judgment of that court in favor of the plaintiff has been reversed for want of jurisdiction, and that is the question we are now called upon to consider.
In order to defeat the jurisdiction of the justice, it must be made to appear that there is a total want of evidence upon some essential point. The creditor is not required to furnish conclusive evidence of the facts relied on, but it is sufficient if the proof had a legal tendency to make out in all its parts a case for the issuing of an attachment, and as the question is one of jurisdiction, I am not able to see why any different rule applies, whether it arises in a direct or collateral pro
ceeding. The
dicta
to the contrary appear to me groundless. If the facts and circumstances disclosed fairly called upon the magistrate for an exercise of his judgment upon the weight of the evidence, even if he err, the proceedings will not be void for want of jurisdiction, no matter in what form the question is presented.
(Matter of Faulkner,
4 Hill, 598;
Van, Alstyne
v.
Erwine,
Sheriff, 11 N. Y., 331.) This rule of construction does not appear to have been seriously questioned for thirty years, but has been reaffirmed and approved in very many adjudged cases. It has also been the uniform practice of the courts in reviewing the proceedings had before justices of the peace, to regard them with marked indulgence and liberality in the furtherance of the ends of justice, and, if possible, sustain them by every reasonable and warrantable intendment." It appears to me that the Supreme Court applied a very different rule to the case before us, and for that, among other reasons, I am not able to concur in the ' judgment pronounced. It is supposed that the affidavit upon which the attachment issued in the case of Derrenbacker is somewhat feebler than that in the case of Schoonmaker, but I see no substantial difference, and, in my opinion, both are sufficient ■ to • sustain the proceedings of the justice. There was no question in either ca?.e in respect to the fact of, the existence of the debt. In the one case it-was contracted on the 12th of June, 1863, to be paid on the first of July following, and in the other, on the- seventeenth of June, upon á credit of thirty days. The application was made in each case on the following fourth of August, upon the ground that Spencer had departed from the county of Ulster, where he last resided, and from the State of Hew York, with intent to defraud his creditors. The affidavit of Schoonmaker states positively that Spencer purchased the goods “ on the false representations that he was in the habit of purchasing for ■cash only, and that his stock in business was paid for.” Here, •certainly, is proof that the goods were obtained upon false representations. It is further added in the affidavit “that ■very soon after such purchase, and long before said thirty
days expired, he departed as aforesaid and has not since returned; that the stock in his store or place of business is running down and disappearing.” 'It is then added that the stock of Spencer, so far as can be learned from his other creditors, was all purchased on credit and not paid for, and it is further positively averred “that the agent of the said Spencer refuses to sell or turn out any of said stock toward the payment of the demand of H. Schoonmaker
&
Co., and that the stock of said Spencer on hand is insufficient to pay his indebtedness,” and then follows the belief of the deponent that the departure was with the intent to defraud.
The learned judge who delivered the opinion of the Supreme Court could discover nothing in the affidavit inconsistent with the departure of the defendant with an honest intent. It is said, for aught appearing in the affidavit, he may have gone off openly, and was detained by illness, and it seems to have been assumed that a creditor applying for an attachment under such circumstances must clearly negative all suspicion of honesty. This is net the rule, and the assumption has neither reason nor authority to support it. The defendant having contracted debts upon false representations, departs from his residence and place of business, in the county of Ulster, and from the State, and is absent for about six weeks without any explanation. In the meantime, a clerk disposes of the stock in
trade;
refuses to apply anything upon over-due demands, and the defendant, by the Supreme Court, is supposed, without any proof, to be still on his travels for pleasure or detained by serious affliction. If the facts alleged are not some evidence of departure with a fraudulent intent it will, in my judgment, be difficult to say what evidence will be sufficient for that purpose. It appears to me that the rule adopted by the' Supreme Court is precisely the reverse of what the law approves. Everything is assumed in favor of the honesty of the fugitive debtor and nothing to be taken for granted in favor of the unhappy creditor. The learned judge says that every fact stated in the affidavits may be true, and yet the departure of the
defendant may have been honest, and his failure to return caused by failing health or serious illness. In appEcations for attachments against the property of concealed or absconding debtors under 2 Eevised Statutes (3, § 4; id., 13, § 62), it is required that the application of the creditors shall be supported by the affidavits of two
disinterested
witnesses, who verify and support, by facts and circumstances, the grounds of the application. Yet it was held by the Court of Appeals that it need not be affirmatively proved that the witnesses thus, relied on were, in fact,
disinterested.
That would be assumed untE the contrary was shown.
(Van Alstyne
v.
Erwine, Sheriff,
11 N. Y., 331.) And I do not see that in this case it is to be assumed that Spencer’s departure was with an honest intent, or his continued absence the result of sickness, against facts going strongly to show that he was insolvent, contracting debts upon false representations, and departed from his residence without notice, and remains absent without any explanation.
It appears to me that the Supreme Court gave undue prominence to the fact that there was no positive averment in the affidavit of Spencer’s insolvency. Some facts were certainly stated that at least, might tend to move the judicial mind in that direction. The learned judge most truly says, that Spencer may have been abundantly solvent, and yet his stock on hand insufficient to pay his debts, as it does not disclose the debts due, or money or other property owned by the departing debtor. But the question really is, whether, when all the visible means and resources of a departing debtor appear to be insufficient to discharge his obligations, the courts are to assume that he had some invisible means of paying his debts. I think not! Eo court is required to worry itself to find excuses for a fugitive from debt. And it may be suggested that the question of insolvency, although of great importance, is not controHing. If a perfectly solvent man departs the State with the intent to defraud, his property may be attached.
Another fact seems to have been relied upon, and that
is, that the affidavit does not disclose why the clerk or agent of Spencer refused to apply his property in payment of his" debts. This was not required. The fact was that the refusal was made, and with other, facts proven in the case, there was some evidence to show that Spencer had some prejudice against discharging his pecuniary obligations.
As has been said, it was assumed that the affidavit in the case of Derrenbacker is the stronger one, or, in the language of the learned judge, that he had “ sworn a little stronger,” although, as he says, it was apparent that he knew no more than the “ defendant in the other case.” The printer has probably substituted “ defendant ” for “ deponent,” and, I think, the Supreme Court in deciding the case, inverted the rule "of legal presumption.
As I am content to rest my judgment upon the weaker affidavit without further argument, it is my opinion that the judgments óf the Supreme Court and the Ulster County Court should be reversed, and that of the justice be affirmed with costs.