Curtis v. Settle

• Decision Date: 31 May 1842
• Citation: 7 Mo. 452
• Parties: CURTIS v. SETTLE.
• Court: Missouri Supreme Court

7 Mo. 452

CURTIS

v.SETTLE.

Supreme Court of Missouri.

May Term, 1842.

APPEAL FROM THE ST. LOUIS COURT OF COMMON PLEAS.

KING & MURDOCK, for Appellants.

DARBY & KNOX, for Appellee.

TOMPKINS, J.

This is an action commenced in the court of Common Pleas of St. Louis county by Curtis, against Settle. Judgment was given for the defendant in the court of Common Pleas, and to reverse that judgment the plaintiff appeals.

The defendant in the court of Common Pleas moved to quash the attachment on account of the insufficiency of the affidavit, which, after stating the indebtedness of the defendant, is in these words: “And that this affiant has good reason to believe, and does believe, that the said Thomas G. Settle is about to convey his property so as to hinder or delay his creditors.”

The defendant in error contends that the affidavit required by the attachment law, under which the attachment in the above cause was issued, should charge fraud where the fact upon which the affidavit is based, is a conveyance of property. The law relied on, is the fourth clause of the first section of the act to amend an act, &c., page 6th of the acts of the session of 1838-9, approved 13th February, 1838. It is in these words: “Fourth. Where the debtor has fraudulently conveyed, assigned, removed, concealed, or disposed of, or is about to convey, assign, remove, or dispose of any of his property or effects, so as to defraud, hinder, or delay his creditors.” In the first member of this clause there are five cases in which a plaintiff, by making the required affidavit, may obtain an attachment: they all relate to a fraudulent act already done; first, where the debtor has fraudulently conveyed, where the debtor has fraudulently assigned, or has fraudulently removed his property, &c. In the second member of said clause there are four cases stated in which a plaintiff, making the proper affidavit, may obtain an attachment: first, where the debtor is about to convey any of his property or effects, so as to defraud any of his creditors: second, when the debtor is about to assign any of his property or effects so as to hinder or delay any of his creditors. Again, where the debtor is about to assign any of his property so as to hinder or delay his creditors; and so of the remaining cases.

The affidavit here is, that the defendant was about to convey his property so as to hinder or delay his creditors. The words, “hinder and delay” are, in my opinion, of the same import, and either would have...