The affidavit upon which the attachment was granted contains no sufficient statements to authorize the issuing of such process. There was a general statement only that a fraudulent disposition of the defendants' property had been made. Neither a general statement of fraud nor a statement on information and belief, without showing that the person from whom the information was obtained, is absent, or that his deposition cannot be procured, is sufficient to authorize the granting of an attachment. The facts should be stated from which the legal conclusion of fraud must flow. The defendants could have successfully moved to vacate the attachment on the papers whereon it was granted. Had the defendant so moved, it cannot be claimed that his motion could have been resisted by further affidavits on the part of the plaintiffs to fortify the defective papers on which the attachment was granted. The attachment must stand or fall by the original papers, when the facts therein stated are admitted by the defendant on a motion to vacate.
Such is the condition upon which the present motion was brought before the court below. There was an insufficient or defective allegation of fraud as to the disposition of the defendants' property. The defendant makes no denial or attempt to avoid the charge as presented by the original papers, but relies entirely on the insufficiency of the proof, as required by the provisions of the Code in such cases. If the plaintiff is permitted to add further proof, so as to make a different case, it will operate as a surprise upon the defendant and convert his motion to vacate into an application by *Page 275 the plaintiff to be relieved from his fault or irregularity, and it could not be expected that the defendants would be prepared to oppose the application without notice.
The affidavit served by the defendant, with his notice of motion, does not affect the question above stated. The affidavit relates to another branch of the plaintiffs' case. A note had been taken from the defendant by an agent of the plaintiffs, extending the time of payment of the original demand, and the plaintiffs prepared their papers to apply for the attachment so as to prove, in addition to the fraudulent disposition of the defendants' property, that the apparent extension of the time of payment had been obtained from their agent by fraudulent statements, thereby authorizing them to disregard the extended credit and proceed for the collection of the original demand.
These statements had no relation to the grounds upon which an attachment may issue as provided by the Code. (Section 229.) In fact they were wholly unnecessary. The question whether the time of payment had been extended, would not arise, unless the defendants raised it by their answer to a complaint on the original demand. It was a fact to be litigated or not, as the defendants elected when they interposed their answer. The plaintiffs, however, chose to open that branch of the case in their application for an attachment.
The affidavit served by the defendant North, with his notice of motion to vacate the attachment, shows that the lady who became liable on the note given to obtain the extension of the credit to the defendants, was a feme covert, and he seeks to raise the argument from that fact, that the representations concerning her property, which are alleged to be false, whereby the original demand was revived, were of no consequence or materiality. This issue is collateral to the inquiry whether the plaintiffs were entitled by the Code to the process of attachment. As the defendant sought, by his moving papers, to avoid the force of that issue, I suppose it was admissible for the plaintiffs to read affidavits to meet that *Page 276 branch of the case. The issue was wholly immaterial. It could not be heard or decided upon affidavits, because it was an issuable fact, on which the right to maintain the action depended, or might depend, if the defendants should plead the extension of the credit. Had the defendants' motion depended upon this issue, he could not have succeeded, for the reason indicated, however preponderating his proof might have been.
The service of the affidavit of the defendants, as before observed, had no relation to the main question of the fraudulent disposition of the defendants' property. It gave the plaintiffs no right to fortify their original papers on the main and only material question to be considered. It has been repeatedly so held. (22 Howard's P.R., 272.) The rule is the same in regard to motions in cases of arrest or injunction. Where the defendant moves on the plaintiff's original papers, it is not the practice to allow the plaintiff to read affidavits to fortify or sustain his process.
2. At the time the appeal was taken, January, 1868, the fourth subdivision to section 11 of the Code had not been adopted. I think the order was not then appealable.
It is not important, however, whether the appeal be dismissed, or the order affirmed with costs.
Order affirmed with costs.