Church v. Drummond

• Decision Date: 26 November 1855
• Parties: Church and Others v. Drummond
• Court: Indiana Supreme Court

7 Ind. 17

Church and Others v. Drummond

Supreme Court of Indiana

November 26, 1855

From the Huntington Court of Common Pleas.

The judgment is affirmed with costs.

J. R Coffroth, for appellants.

D. D Pratt and S. C. Taber, for appellee.

OPINION

Stuart J.

In August, 1854, Church and others procured an order of attachment against Drummond, under the 6th specification of section 156, 2 R. S., p. 63. Drummond appeared and pleaded. The issue joined was submitted to a jury. Verdict and judgment for the defendant. The attachment-creditor appeals.

The charge on which the the order of attachment issued was, that Drummond was about to sell, convey and otherwise dispose of his property, subject to execution, with the fraudulent intent to cheat and hinder his creditors.

The record presents several questions for consideration. First in order is the sufficiency of the written undertaking of the attaching creditors. That undertaking is provided for in Sec 160, 2 R. S., p. 64, which reads:

"The plaintiff, or some one on his behalf, shall execute a written undertaking, with sufficient surety, to be approved by the clerk, payable to the defendant, to the effect that the plaintiff will duly prosecute his proceeding in attachment, and will pay all damages which may be sustained by the defendant, if the proceedings of the plaintiff shall be wrongful and oppressive."

The written undertaking, in the case at bar, is thus:

"We undertake that the plaintiffs shall duly prosecute their proceedings in attachment in this action, and pay to the defendant all damages which he may sustain if the proceedings of the plaintiffs shall be wrongful and oppressive. William C. Smith. Approved by Joseph Wiley, clerk, by J. R. Coffroth, deputy."

On this undertaking, together with the affidavit, &c., the order of attachment issued.

Before appearance entered, counsel for Drummond, as amici curiae, moved to quash the order of attachment, on the ground that the undertaking was not signed by the plaintiffs, or any one on their behalf, but only by the surety. It is contended that the statute contemplates both principal and surety should sign the undertaking. This would seem to be a fair deduction from the language. But counsel for the creditors insist that this undertaking by the surety alone, is in conformity to the form given by same revised statutes in such cases. Form No. 44, 2 R. S., p. 352. The statute declares, further, that these forms "may be used and shall be sufficient in all cases where they are applicable." Taking these statutes together, it is difficult to say that the undertaking by the surety alone, approved by the clerk, is not, at least, prima facie sufficient. Legislative forms will be respected where, in a preliminary step like this, they appear to apply. Bringhurst v. Pollard, 6 Ind. 452.

There is more difficulty where the form given is a pleading which lacks some substantial allegation. There, perhaps, the ruling might be different.

In this case the security of the party whose property is attached, is the end to be attained. The object of the act seems to be sufficiently complied with when the undertaking is by a surety whose solvency is satisfactory to the clerk; especially as the party is not precluded from showing the insolvency of the undertaker. Blaney v. Findley, 2 Blackf. 338.

The motion to dismiss for want of a sufficient undertaking, was correctly overruled.

The next point is, did the Court err in permitting the defendants to introduce evidence as to their good character for honesty? The question asked and answered was, "What was the general character of the defendants for honesty, on or about the 30th day of August, 1854?" The general rule laid down by Starkie, and very generally adhered to by the English Courts, is, that evidence of general character is not admissible in civil proceedings, unless the character of the party be directly in issue. Stark., part 4, 366. Greenleaf admits the English rule to the same extent. 1 Greenl. Ev., ss. 52-3, n. The evidence of character, in civil cases, is thus confined within narrow limits. In the text of Greenleaf it is said that where the defendant is charged with fraud from mere circumstances, evidence of his general character is admissible to repel it. 1 Greenl. Ev., ss. 54-5. But the cases he cites can scarcely be said to sustain his position. And in a note he admits that the case chiefly relied upon, Ruan v. Perry, 3 Caines 120, has been strongly doubted and feebly supported by the Courts even in New York. It is believed the general current of American decisions adheres to the English rule. That rule is, that only in cases where the character is in issue, can evidence of general reputation be given. Even then it must be confined to the reputation of the party, with special reference to the nature of the question in issue.

But in this case the evidence was not in the record. We can not even divine how the question was answered. If the answer was, that the character of the Drummonds was bad, the plaintiffs could not have been injured by it. It...