BUHBERGER 'V. GERSON.
EL DORADO CO.
(Circuit Oourt, D. California. July 6, 1885.)
This case is similar to Nash v. El Dorado 00., ante, 252, and must be decided in the same way. Let a similar order be entered.
and others v.
(Oircuit Oourt, W. D. Louisiana. April, 1885.)
ATTACHMENT-FRAUDULENTLY DISPOSING OF PROPERTy-INTENT MUST EXIST AT TBIE OF MAKING AFFIDAVI;r.
The fraudulent act of a debtor, made the ground of an attachment, must have accrued before or exist at the time the affidavit for the attachment is made by the creditor.
ALLOWING ADDITIONAL SECURITY TO BE
SAME - INSGFFlCIENCY OF BOND GIVEN.
The insufficiency of a surety on the bond at the time the attachment was issued will not render it void, and entitle defendant to have it dissolved, but additional securit.y may be required and taKen by the court.
At Law. Millsaps et Sholars, A. Goldthwaite, and M. O. Elstner, for plaintiffs. Boatner et Boatner, for defendant. BOARMAN, J. Defendant's motion to dissolve the attachment in these cases presents three different grounds, which alike apply to all of these cases. A stipulation waiving the jury is in the record. The reasons urged by defendant's counsel, except the questions of the sufficiency of the surety on the bond, have been considered and passed upon as being insufficient to dissolve the attachment. In none of the grounds for dissolving the attachment do the defendants deny the fraudulent acts charged against them. The allegation as to the insufficiency of the bond presents an interesting matter of fact and law. The bond in this case is for $1,500; and the same surety, Allen, appears as the sole surety on a number of bonds where the writs were issued against the several defendants affected by this motion to dissolve the several bonds, were signed on the same day, and amount aggregately to over $20,000. The proof shows that Allen's property, liable to seizure, is worth about $15,000. The plaintiff alleges his right to the attachment under act of 1868. He says, substantially, that at the date of the attachment Gerson had converted, or was about to convert, his property into money, or evidences of debt, with intent to place it beyond the reach of his creditors. For the purposes of this. cause, during these motions, the v.24F,no.6-17
debt sued on, under the pleadings, tnust be treated as justly due by the defendants, and we must also consider that Gerson, in the motive of his acts in the premises, had the intent to defraud his credo itors, the plaintiffs in these sui:s. The Louisiana courts have repeatedly laid down the following rules in relation to attachments, and to the causes for their dissolution:
1. That an atLachment must stand or fall, according to Lhe state of facts at the date when it issues, and it cannot be cured by a subsequent event. 2. '.rhat the surety on the bond must be good; that is, he must be compe. tent to enter into and bind himself by contract; he must be solvent and able to pay his debts and lialJilities, including the amount of the bond; he must have property in value beyond the amount of the bond; the property upon . the value of which the bondsman's sufficiency is to be tested must be liable to seizure.
In making this test I think the surety's property should be of such a kind as the law will allow to be seized and sold to satisfy the obli· gations of the bond, and that the court should not, with the view of testing the sufficiency of the surety, take into consideration the extent of the facility or difficulty which might attend the marshal in effecting the seizure of the proper!,y.
3. Attachment is a harsh and severe remedy, and strict proof should be required Oil a motion to dissolve.
'rhe defendants rely on the inflexibility of the first rule, and say that the fact of the sufficiency of the surety must exist a\mong the state of facts at the time the attachment issues. In applying the first rule suggested, let us see wnat the conrts mean and intend to imply in saying that the attachment must stand or fall on the state of facts at the date when it issues. What things or facts must be true, under the reason of that rule, at the time the attachment issues? Does the reason of the rule suggest that the facts relied on for the issuance of the attachment writs should exist at the time the plaintiff signs the affidavit setting up the causes for his attachment; or does the rule require that the allegations setting up the fraudulent purpose of the debtor should be true at the time of the issuance by the clerk of the writs? It is conceded that the untruth of the allegations charging the fraudulent acts on the part of the debtor at the date of the affidavit mllst be fatal to the validity of the attachment, whatever may be the solvency of the surety. In this case it must be true that at the time plaintiff made his affidavit Gerson was fraudulently disposing of his property, or was about to dispose of it. If his fraudulent intent and acts occurred after the time plaintiff made the affidavit, the attach· ment, at whatever time the writr3 may have been issued by the clerk, must fail. The insufficiency of these facts stated in the petition and affidavit cannot be cured by a subsequent event; for the plaintiff will not be allowed to show any fraudulent acts of the defendant which occurred after the date of the affidavit, except in so far as such sub-
RUMBERGER V. GERS6N.
sequent acts of the plaintiff might be admissible to illustrate the defendant's fraudulent motive and purposes, even though the writs were not ordered by the judge, or, in fact, issued by the clerk for a day or more after the filing in the court of the petition and affidavit. Recurring a moment to the practice, in the mRtter of application for and in the issuance of the attachment writs, we will find that the particular time at which the rule would require the alleged facts must be true, refers to the time at which the affidavit is made by the defendant, rather than to the time at which the writs issue; for it may be, as it often is, that the plaintiff makes the affidavit a day or several days before the judge has an opportunity to grant the order for the issuance of the writs; the judge's order is granted only after the petition and affidavit are presented to him. Having obtained the order to let the writ issue, on the plaintiff's giving bond according to law, the plaintiff in good faith presents his surety, whom he believes to be solvent. The clerk, to whom the law confides the quasi judicial duty of passing on the sufficiency of the surety, may approve or reject the surety; if he approves the surety, the plaintiff has done all that he can do in the matter; if he rejects the surety, the plaintiff may tender another surety. When the clerk takes the surety offered by the plaintiff, who is without collusion with his surety, or knowledge of his insufficiency, the result is to show to all parties, as far as it is practicable, that the bondsman is sufficient in law;' Anterior to the act of 1868 an attachment would not lie for the reasons or on the grounds provided for in that act; then an attachment issued when the debtor resides out of the state, or has left the state permanently; when he is about to leave the state without there being a possibility, in the ordinary course of judicial proceedings, of obtaining or executing a judgment against him previous to his departure. The enlargement of the grounds for an attachment so that it is for the first time, under the act of 1868, made a remedy against the fraudulent acts of a debtor, suggests that the first rule, which was laid down, as it appears, before the remedy by attachment was so extended, should not now, in its literal significance, apply. We must assume that all the fraudulent acts of the debtor in this case existed at the time the affidavit was made. These facts are not denied, but the debtor says, notwithstanding his fraudulent acts, the attachment should fall; that now, plaintiff's only remedy to prevent injury from his fraudulent acts should be denied to him; that plaintiff's only remedy now, to make effectual in his favor, against defendant's fraudulent acts, the common pledge which he, as a creditor, had on his debtor's property, must be denied and taken from him because the clerk approved a bondsman who was not then The plaintiff swears that the fraudulent acts upon which he relies for attachment had occurred before, or they existed at, the time of the affidavit; he does not swear to the sufficiency of the surety at any time.