Vosburgh v. Welch

11 Johns. 175

Opinion

Thompson, Ch. J.

delivered the opinion of the court. The statute (sess. 31. c. 204. s. 23.) requires the justice, before issu mg the attachment, to have satisfactory proof offered him, of the departure or concealment of the debtor, with intent to defraud his creditors, or to avoid being personally served with process, (a) A mere error in judgment as to the legality of the proof offered, would not make the magistrate a trespasser, by issuing the attachment. But such proof, in order to give jurisdiction to the justice, ought, at least, to be colourable. He cannot act upon his own knowledge, or mere belief on the subject, however well founded it may be. Proof, in the sense in which it is used in the act, means legal evidence, (9 Johns. Rep. 75.) or such species of evidence as would he received in the ordinary course of judicial proceedings. The evidence upon which the justice acted, in this case, was not of that description. It did not amount even to the information of the constable, that the debtor had departed the county, or was concealed, with intent to defraud his creditors, or to avoid being served with process. The justice might have believed the fact upon mere reí port, or the information of some person in whom he had confidence. But this would not have been satisfactory proof, within the meaning of the act; nor was the return of the constable, on an execution against the debtor, any such proof. It was altogether foreign and irrelevant. The justice must be considered as having issued the attachment xvithout any proof xvhatever of the departure or concealment required by the act; and, of course, xvithout any authority.

The evidence offered to shoxv that the property taken under the attachment had been restored to the plaintiff after this suit xvas brought, ought to have been received in mitigation of damages. The plaintiff by his action, seeks to recover not only damages for the taking, but also the value of the property. It xvould be unjust to allow him the value, after the property had been restored to him. It is immaterial as to the person from xvhom he received the property; having received it, he is not entitled to a compensation for it. If the restoration of the property had been made before the commencement of the suit, it could not have been pleaded in bar of the suit, which is as xvell for the taking and detention, as the value of the goods; nor, for the same reason, could it have been pleaded puis darrein conn tinuance. It follows, then, of course, that the evidence mUst be received in mitigation of damages; otherwise, the plaintiff will recover for an injury which he never has sustained. (6 Bac. Abr. 628.) The plaintiff must, therefore, take judgment for six cents only, according to the stipulation in the case.

Judgment for the plaintiff, for gix cents.

Footnotes

(a)

By the new revised act, (sees. 36. c. 53. s. 23. 1 N. R. L. 398.) passed April 5,1813, the justice is required to have satisfactory proof, by at least one dispute-rested -witness.