The plaintiffs instituted their action on December 18th, 1880, to recover a debt alleged to be due for goods sold and delivered, and on the same day obtained an order of arrest and warrant of attachment upon the affidavit of Harris Hopkins, their agent and salesman, who states the amount of the claim, and further on information and belief;
1. That the defendant is about to leave the state and with intent to defraud his creditors;
2. That with like intent he is about to remove his property beyond the limits of the state;
3. That he is, and for some time past has been concealing himself to elude the service of process and avoid the payment of his debts;
4. That he has collected and has under his control about nine hundred dollars, paid upon an insurance on his stock of goods that (127) were destroyed by fire, and there is still due on the policy near twelve hundred dollars, which if collected will be wholly lost to the creditors.
The arrest of the person of the defendant was made on the next day, Sunday, and several writs of attachment against his estate issued to different counties without result, except as to those directed to the sheriffs of Edgecombe and Gaston, the former of whom levied the attachment upon the residue of the insurance money due from the Pamlico Banking and Insurance Company of Tarboro, which is returned at the sum of $982.38; and the latter seized and took into possession a buggy belonging to the defendant.
On February 12th, 1881, another action was commenced by the plaintiffs and other creditors, reciting and associating their several demands, when in both causes the following order was entered in reference to the insurance fund: *Page 115
Whereas it appears that the Pamlico Banking and Insurance Company of Tarboro, N.C. is indebted to the defendant in the above stated causes in the sum of $982.38, and that the same has been levied on by the plaintiffs in the first above named cause by virtue of an attachment issued therein; therefore by consent of attorneys for both plaintiffs and defendant in both said causes, it is ordered, that the said Pamlico Banking and Insurance Company pay the full amount of said debt into the office of the superior court clerk of Gaston, and that the same when paid in be retained to await, and be subject to further orders in said cause; both parties plaintiffs and defendant reserving all rights and claims to said fund, and waiving no right, except that the money be paid into the office, and that when so paid in, the said company shall be discharged so far as it effects said company.
The order is subscribed officially by the clerk, and also bears the attesting signatures of the several attorneys (who represent the several creditors in the action) and the defendant in (128) approval.
Upon the return of the summons, at spring term, the plaintiffs filed their complaint in the first suit, and charged that the defendant purchased and obtained possession of the goods at the price of $938.85 with the fraudulent purpose which he is still endeavoring to carry out, of avoiding the payment thereof. The defendant also filed an affidavit accompanied and sustained by the affidavits of several others, specifically denying the charges contained in the complaint, and those upon which the arrest was ordered, and stating further that he was under twenty-one years of age when the debt was contracted, as well as when the writ issued. The complaint verified and used as an affidavit is supported by that of one G. T. Coleman, the agent of another creditor firm interested in the second suit, in which he testifies to the defendant's concealing himself and avoiding an interview with affiant on the 28th day of December, when affiant sought to collect the account due his firm, and reiterates upon information the allegation of the defendant's possession of a large sum of money which he refuses to appropriate to his debts, but fraudulently withholds and conceals to avoid their payment. The evidence, which it is unnecessary to set out more in detail, was presented to, and heard by the presiding judge upon a motion to vacate the order of arrest and warrant of attachment, made before the clerk and by consent transferred to be decided by him. His Honor in passing upon the application of the defendant found as facts, that,
1. The defendant was not about to depart the state to defraud his creditors; *Page 116
2. Nor to remove his property therefrom with such intent;
3. Nor did he conceal his person to elude the service of process or defeat the claims of creditors; and that
(129) 4. He was an infant when the goods were bought and received. Thereupon judgment was rendered vacating the order of arrest — discharging the bail bond, dissolving the attachment and directing the restoration of the property attached and the payment of the money deposited to the defendant, or to his agent; from which ruling the plaintiffs appealed. It is insisted that the ruling is erroneous, in that, the findings of fact are imperfect, and do not dispose of all the controverted matters upon which the revoked order and warrant depend, and especially in the omission to pass upon the charge of the defendant's evasion and concealment (while holding a large amount of money) of his person from the witness, Coleman, when in search of the defendant.
We think the objection untenable for several reasons.
The regularity and validity of these ancillary remedies must be determined upon the facts existing, and made to appear at the time when they were sought and awarded, and not upon what may have afterwards transpired. The subsequent conduct of the defendant is pertinent to an inquiry as to the truth of the allegations then made, and as the development of a preconceived fraudulent purpose, but it is not substantive and sufficient evidence to sustain the clerk in issuing the writs upon the proofs then laid before him of the defendant's acts, and his imputed fraudulent purpose, of which they were in furtherance. The testimony of Coleman is little more than a narrative of his own unsuccessful efforts to find the defendant, and urge upon him the payment of the claim of his principals in his hands for collection, and while the fact of concealment is in itself contradicted by (130) other witnesses, if accepted as true, it only shows that the defendant sought to escape a personal interview and the importunity of a pressing creditor — not to avoid an officer or legal process; and this constitutes no ground for arrest or attachment. Besides, this occurred ten days previous to the awarding of either, and cannot avail in justification of their issue. The additional evidence admissible upon the hearing of the motion to rescind, is confined to the proof or disproof of the facts alleged in the original affidavit, and is not to be *Page 117 extended to new matter since transpiring. New matter may however warrant a second issue of these auxiliary remedies, if the first be adjudged irregular, or the facts charged be shown to be without foundation afterwards upon an application to recall them.
The cases cited (Clark v. Clark, 64 N.C. 150; Brown v. Hawkins,65 N.C. 645; and Palmer v. Bosher, 71 N.C. 291) are not antagonistic to the view we have expressed. In these there was a substantial defect in the form of the affidavit, which was removed, and the necessary absent allegations supplied from the opposing proofs offered in the motion to vacate. They did not change the original grounds of the application, nor furnish new material in its support. But where the evidence goes beyond this, and is offered to show other and different ground to sustain the action of the clerk, that originally laid before him being sufficient to warrant the arrest, but being effectively controverted, to allow this would be to legalize and render right that which was erroneous and wrongful when done. Even if this were competent, the refusal to act upon the new facts alleged rests in that sound judicial discretion the exercise of which we cannot undertake to revise. The proper course in such a case would be to ask for another order of arrest and attachment. Wilson v. Barnhill, 64 N.C. 121.
Delivering the opinion of the court in Palmer v. Bosher, RODMAN, J., uses this language: "We do not wish to be understood (131) as holding that an affidavit for an attachment defective in substance, may be amended so as to sustain the warrant of attachment. We are inclined to think that, as in the parallel case of an injunction, if the original affidavit was insufficient in substance to sustain the attachment, it could not be amended so as to do so."
For a stronger reason should a plaintiff, who has assigned grounds legally sufficient to authorize the arrest and seizure, not be permitted, when they are falsified upon the proofs, to change them and assign others. A defendant would never be safe if he could be arrested on one charge, and that failing, be held in custody upon another.
2. The service of the writ and the arrest of the defendant on Sunday were also unlawful, and in violation of the statute, Rev. Code, ch. 31, sec. 54, which so expressly declares.
3. The appellants further except to so much of the judgment as directs a return of the money and property attached to the defendant.
It will be noticed that the deposit of the money paid in by the insurance company with the clerk, is on the terms that it be "retained in said office to await and be subject to the order of the court." This is also the requirement of the statute which provides, upon a dissolution of the attachment, that "all the proceeds of sale and moneys *Page 118 collected in such action remaining in the hands of any officer of thecourt, under any process or order in such action, shall be delivered orpaid to the defendant or his agent and released from the attachment." C. C. P., Sec. 212. The undertaking required in the next section is not necessary when the warrant "on its face appears to have been issued irregularly, or for a cause insufficient in law, or false in fact." Bear v. Cohen,65 N.C. 511.
Upon a review of the whole case, we discover no error in the record and affirm the ruling of the court below.
No error. Affirmed.
Cited: Hale v. Richardson, 89 N.C. 64; Harriss v. Sneeden, 101 N.C. 278;S. v. Moore, 104 N.C. 749; Knight v. Hatfield, 129 N.C. 194; Mahoneyv. Tyler, 136 N.C. 45; Grain Co. v. Feed Co., 179 N.C. 656; McCollum v.Stack, 188 N.C. 463; Collins v. Norfleet-Baggs, 187 N.C. 660; Mintz v.Frink, 217 N.C. 103.
(132)