Pike v. McMullin

• Court: Vermont Supreme Court
• Writing for the Court: START
• Citation: Pike v. McMullin, 28 A. 876, 66 Vt. 121 (Vt. 1894)
• Decision Date: 07 March 1894
• Parties: PIKE BROTHERS v. N. McMULLIN

28 A. 876

66 Vt. 121

PIKE BROTHERS v. N. McMULLIN

Supreme Court of Vermont

March 7, 1894

JANUARY TERM, 1894

Assumpsit upon a promissory note, coming into the county court by appeal from the judgment of a justice. Heard at the September term, 1893, Orleans county, TAFT, J., presiding. The defendant moved to dismiss, which motion was overruled and the defendant excepted.

Judgment reversed, motion to dismiss sustained, and cause dismissed with costs.

A.D Bates for the defendant.

OPINION

START

The plaintiffs' attorney on the 15th day of March, 1892, filed with the justice an affidavit, in which he made oath that he had good reason to believe and did believe that the defendant was about to abscond or remove from this state, and had secreted about his person, or elsewhere, money, or other property, to an amount exceeding twenty dollars, or sufficient to satisfy the demand in the suit. On the 14th day of May, 1892, the justice with whom the affidavit was so filed, issued a writ against the body of the defendant, and, on the 25th day of May, 1892, the same was served by arresting his body. R. L., s. 1477, as amended by No. 47 of the Acts of 1890, in general terms prohibits the arrest and imprisonment of a debtor in actions founded on contract. By R. L., s. 1478, this section is qualified so as to authorize the issue of a writ as a capias, when the plaintiff, his agent or attorney, files with the authority issuing the writ an affidavit, stating that he has good reason to believe and does believe that the defendant is about to abscond or remove from this state, and has secreted property to an amount exceeding twenty dollars, or sufficient to satisfy the demand upon which he is to be arrested.

The affidavit filed in this case was prima facie evidence of the fact, that, sixty days before the writ issued, the defendant was about to abscond or remove from this state, and that he had secreted about his person, or elsewhere, money, or other property, to an amount exceeding twenty dollars, or sufficient to satisfy the demand in suit but it was not evidence of the fact, that, at the time of the issuing of the writ, he was about to abscond or remove from this state, and had money, or other property, to an amount exceeding twenty dollars, or sufficient to satisfy the demand in suit. It is clear that the affidavit must show the intent and circumstances of the defendant at the time of the issuing of the writ. His intentions and circumstances in the past are immaterial. The fact that the defendant was, at some time prior to the issuing of...