Guile v. M'Nanny

• Citation: 14 Minn. 391
• Parties: ROYAL GUILE v. DENNIS McNANNY.
• Decision Date: 01 January 1869
• Court: Supreme Court of Minnesota (US)

14 Minn. 391

ROYAL GUILE

v. DENNIS McNANNY.

Supreme Court of Minnesota.

Appeal by plaintiff from an order of the district court, Dodge county, vacating an attachment.

G. B. Cooley, for appellant, cited:

A. J. Edgerton, for respondent, cited:

McMILLAN, J.

This is an appeal from an order setting aside an attachment against the property of the defendant. The affidavit upon which the attachment was allowed states as the ground of the attachment "that the said defendant has assigned, secreted, or disposed of, or is about to assign, secrete, or dispose of, his property with intent to delay or defraud his creditors."

The statute provides that an attachment may be allowed "whenever the plaintiff, his agent or attorney, shall make affidavit * * * that the defendant * * * has assigned, secreted, or disposed of, or is about to assign, secrete or dispose of, his property with intent to delay or defraud his creditors." Sess. Laws 1867, p. 110, c. 76. The affidavit, in stating the ground of the attachment, it will be perceived, uses the language of the statute just quoted.

The only question is whether the affidavit states several distinct grounds of attachment in the alternative or not. We think it does. The intention of the statute was to protect creditors against the fraudulent conduct of their debtors, but in doing so it was also intended to protect innocent debtors against oppression and injury by specifying the acts of the debtor which, if done with a fraudulent intention, should be sufficient cause for an attachment in favor of the creditor, and requiring an affidavit of the commission of such acts, or some one or more of them, by the debtor with such fraudulent intent. In the specification made in the statute of the acts which shall authorize the allowance of the writ, they are connected by the disjunctive conjunctive "or." So far, then, as the acts specified are distinct and different in their nature, they must be regarded as separate grounds of attachment; but so far as the terms used are descriptive only of different phases of the same fact, they may be considered as prescribing but one substantive ground of attachment. Drake, Attachm. §§ 101-2. The language used in the statute is, "has assigned, secreted, or disposed of, or is about to assign, secrete or dispose of," etc.

The word "assigned" here means the transfer of the legal title to the property, and perhaps any conveyance of any interest therein; "secreted" means hidden in fact; and ...