dissented, and delivered the following opinion :
This is an action of assumpsit under our attachment law.
The affidavit was made under the statute approved December 20th, 1859, which provides: “ That from and after the passage of this act, (the) writ of attachment now authorized by (the) statutes of this State to be issued where the debt or demand is due, shall in no case be issued unless the party applying for the same, or his agent or attorney, shall first make oath in writing before a justice of the peace or clerk of the circuit court, as is now provided by law, that'the amount of the debt or sum demanded is actually due, and also that he 'or she has reason to believe the party from whom it is due will fraudulently part with his, her, or their property before judgment can be recovered against him, her, or them, (as the case may be,) or is *619actually removing Ms, her, or their property out of the State of Florida, or about to remove it out of the State, or resides beyond the limits thereof, or is actually removing or about to remove out of the State, or absconds or conceals himself or herself, or is secreting his or her property, or fraudulently disposing of the same,” and alleges that Nassitts is justly indebted to Haber & Co-, in the sum of four hundred and four dollars and eighty-eight cents, which amount is actually due, and.that the said William W. Nassitts is actually removing his property out of the State of Florida. The attachment bond was made, approved, and filed, and the writ was issued and executed by attaching fifteen boxes of assorted merchandise pointed out as the property of Nassitts, and by notifying Nassitts. The plaintiffs then filed their declaration, and afterwards the defendant filed two affidavits for dissolution of the attachment. The statute providing for dissolving attachments is as follows : “ The courts respectively to which such attachments are returnable shall bo always open for the purpose of hearing and deciding motions for dissolving such attachments, and in any such case, upon oath made and tendered to the court that the allegations in the plaintiff’s affidavit are untrue, either as to the debt or sum demanded, or as to the special cause assigned, whatever it may be, for granting the attachment, then in every such case it shall be the duty of the court to hear evidence upon the issue so presented ; and if, in the opinion of the court, the allegations in the plaintiff’s affidavit are not sustained and proved to be true, the said attachment shall be dissolved. Provided, That if the party, defendant, shall demand the same, a jury shall be empannelled to try the issue joined as aforesaid.” T. D. The affidavits of the defendant Nassitts alleged that “the allegations in the plaintiffs’ affidavit as to the special cause assigned for the issuance of said attachment are untrue; that said defendant was not removing his property beyond the limits of the State of Florida .as alleged in the said affidavit, but was only forwarding a few of his goods for sale in an adjoining State in the course of Ms *620trade.” Thereupon a jury was empannelled, evidence taken, the jury rendered a verdict for the defendant, and the court gave judgment dissolving- the attachment. The bill of exceptions gives the evidence, the rulings of the court, and its charge to the jury.
It is not necessary for the purposes of this opinion to state the evidence in detail. The court, against the objections of the plaintiffs, admitted evidence of Urn purpose or intent of the defendant in removing his property, which was the only question raised in the case, and charged the jury as follows :If in this case you believe from the testimony that the defendant at the time of suing out the attachment was removing his property out of the State of Florida, you should find for the plaintiff unless you are further satisfied that it was not done with the intent of avoiding the payment of Ms debts. It will be sufficient on this issue for the plaintiffs to prove that the defendant was removing his property out of the State, but it will be incumbent on the defendant to show the fairness of the transaction, unless it should appear from the testimony adduced against him. It will be competent for you to consider all the facts proved before determining as to the intent of the defendant in the transaction, and if you believe that it was to avoid the payment of Ms debts, you should find for the plaintiffs. It is not necessary that the defendant should have been removing all his goods, but if the testimony satisfies you that he was removing any of them out of the State with such intent, you should find for the plaintiffs, for the plaintiffs would not be required in such a state of circumstances to wait until all the goods were removed or being removed. You should regard rather the intent of "the party than the proportion the goods in question bear to the whole amount of the defendant’s goods. It is competent for you to consider circumstantial testimony. It should bo received with caution, but it is admissible, has always been such, and may rise so high in the scale of testimony as to generate full conviction. Its sufficiency consists in its *621capacity to satisfy the conscience and understanding of the jury. You will give to such testimony in this case the effect to which you think it entitled. If there is any discrepancy between the statements of the witnesses you should reconcile them if you can, but if you cannot do so you must decide for yourselves which you will believe, for you are the exclusive judges of the credibility of the witnesses.”
The plaintiffs requested the court to charge the jury as follows :
First. If the jury believe the defendant was removing his property beyond the limits of the State they must find for the plaintiffs on this motion.
Second. If the jury believe the defendant was removing any portion of his property beyond the limits of the State they must find for the plaintiff on this motion. Which the court refused to do.
After verdict, the plaintiffs moved for a new trial on the following grounds:
First. The verdict of the jury was against the legal evidence in the case.
Second. The court erred in admitting evidence not pertinent to the issue and calculated to mislead the jury.
Third. The court erred in admitting evidence of the intention of the defendant on other points than that of removal of the property, viz.: as to whether his intention by such removal was to defraud his creditors or defeat them in the collection of their debts.
Fourth. That the court erred in the instructions given to the jury, and in refusing the instructions asked by plaintiffs’ counsel.
The motion was overruled, and as by the judgment of the court the attachment was dissolved, the plaintiffs took their appeal.
The defendant proved good intentions on his part, and under *622the rulings and charge, the jury had no alternative but to find the verdict for him. The issues required by that part of the act of 1859 which these plaintiffs invoked, and by the act for dissolving attachments, taken together, are only “as to the debt or sum demanded, and as to the special cause assigned.” The latter is the point in this case, and it was correctly assigned. Does the statute authorize a departure from it, a side issue, a collateral question as to intent to be raised, by which the plaintiffs may be divested of their lien obtained by complying fully with all of its several stringent requirements ? I think not. The statute provides for cases in which creditors are about to be deprived of their lawful rights by acts accompanied by fraudulent intent, and also for some cases in which they may be deprived of them without such intent, and, indeed, with the very best of intentions. There is no room for construing- the latter to mean the same as the former. The case of a non-resident, for example.
The affidavit of the defendant denied the truth of the special cause assigned in the plaintiffs’ affidavit, and in the same sentence plainly showed that it was true, but that he, the defendant, had good intentions. This made no issue as to “the special cause assigned” as authorized by the statute, but suggested another issue not provided for in such case. He had not complied with the requirements of the statute for dissolving attachments, and had no cause in which to make a motion to dissolve. This he seemed to see, for twelve days afterwards,, at said term, he filed his second affidavit, simply alleging that “ the special cause assigned for the issuance of said attachment is untrue, and that said attachment ought to be dissolved.” Under the statute, the “ oath made and tendered to the court ” by the defendant, must be not only “that the allegations in the plaintiffs’ affidavit are untrue,” but it must go farther, and allege, not mere matter of law, as that the attachment ought to be dissolved, but that it is “ untrue either as to the debt or sum demanded, or as to the special cause assigned, whatever that *623may be.” Either as to the debt, as, for example, that it is not due, or as to the sum demanded, as, for example, that it does not amount to that sum, or as to the special cause assigned, as, for example, that he is not actually removing his property out of the State, but only to some other part of the State. At all events, the “ issue ” to be “ presented ” must be confined “ to the debt or sum demanded, or the special cause assigned,” and no other debt or sum or special cause except that which is “ assigned ” “ in the plaintiff’s affidavit ” will answer. The first affidavit, still on file and constituting a part of the record of the cause, plainly showing the special cause assigned in the plaintiffs’ affidavit to be true, the court should have refused to consider this second affidavit, and should have overruled the motion. For if the causes assigned were all true, there could be no room for dissolving the áttachment.
In cases like this, where there are no pleadings but the affidavits, and no issues but what they contain, if the affidavits go outside of the law to present facts and issues not provided for by the statute, it is the duty of the court in its charge to the jury, or, if a jury has not been demanded, in its rulings to treat all such collateral allegations as nullities, and to prevent them from influencing the verdict or decision; hence, if the' court rules otherwise, and no exception to that ruling appears to have been taken or noted at the moment, but that a charge embodying the law correctly was requested to be given to the jury and was refused, and that the point was again made upon motion for a new trial and overruled, and that that last ruling was excepted to and assigned upon appeal as error, the rule requiring facts not otherwise of record to be embodied in the bill of exceptions is not infringed. It does not appear that these affidavits of the defendant were objected to otherwise than substantially in instructions asked to be given by the court to the jury, which •yere refused, and in a motion for new trial, which was overruled, and in the assignment of errors; but as no other course is wholly practicable under these statutes *624in such cases, that pursued must be held to be sufficient to enable this court to act upon errors in the said affidavits.
The defendant in his first affidavit had voluntarily estopped himself from making any issue of fact “ as to the special cause assigned in the plaintiffs’ affidavit,” by thus clearly showing of record that the special cause assigned in the plaintiffs’ affidavit was true in point of fact; but he was seeking to present some other special cause, or some explanation of that which was assigned. He was not seeking to meet the issue required in the Statute and “ presented in the plaintiff’s affidavit,” but to evade it by alleging something about his removing only a part of his property, and about his doing it in the com-se of Ms trade. There is not the remotest suggestion of any such issue in the few words which the statute authorizes the creditor to use. if the defendant would not in his affidavit join in “ the issue tendered in the plaintiffs’ affidavit,” the statute gave him no right to demand a jury, for there could be no other lawful issue of fact to try.
A jury was empanelled to try something that the creditor was nowhere informed in the statute he would have to meet. Ho was not required to know that the property being removed and which he -attached actually in transitu was only a part of the debtor’s property, nor that he had any left behind, nor with what purpose or intent the debtor was removing it. How could he knots the intention, even if told ? Thus wholly uninformed of what character of proof the defendant would be allowed to adduce, thrown out into the broad and uncertain field of intentions, of which the. part of the statute which he was authorized to invoke, and which he had invoked, had furnished him no notice, he was obliged to come before the court, he might suppose to pro ve what the defendant had already in the record conclusively proven for him, and to disprove whatever the defendant could by testimony urge as to his own intejxtions. He had complied with every requirement of the statute, and knew that he could easily prove all that it required of him, and may very properly *625have felt that he was in no clanger of losing that suit nor of having costs and damages to pay; he could see in the statutes that the defendant might replevy, in which 'event he would have a bond and approved sureties in place of the property, but he could not see in the statutes providing for his case, that the defendant might destroy his. attachment, and subject him to costs and damages, by proving-good intentions.
Language cannot bo more plain than that of the statute now under consideration : “ actually removing his property out of the State.” This is all. I can see no sound reason for a construction that cannot be made without at least virtually adding the words with fraudulent intent. That would be to introduce a different question, and one already fully legislated upon and provided for. Arguments drawn from ideas and opinions concerning the legislative and commercial policy and interests of the State, and the abstract rights of debtor and creditor, belong rather to the legislator than to the judge, and have properly no place in judicial opinions or decisions. If the language of a statute is itself doubtful or contrary to common reason there is room for the application of the wise rules of the common law for construing statutes. There is nothing doubtful nor unreasonable in this statute ; especially is there no sound reason for construing it so as to add to it something about the good intentions with which a debtor may carry his property out of the State and lose it. If justice has its losses to trade, commerce, and credit, its compensations far exceed them. If the honest debtor restricts his business operations or his pleasures until he pays his debt, being due, the rewards of his wisdom will be ample.
Counsel for the appellee asks, Can it be seriously insisted that these words in the act must be taken without any limitation whatever ? Will any removal of property, however insignificant, casual or honest, come -within the meaning of the law ? Would the law in question apply to the removal of merchandise out of the State in the regular course of trade, to the shipment of articles manufactured here for a market abroad, and where *626alone such articles Avould command a reasonable price ? Would it bo held to apply to a casual removal of the horses and carriage of a citizen upon a visit to a neighboring State ? In answer it may be asked, why not ? Why should not a delinquent debtor be expected to restrict himself in his business affairs and his pleasures in order to do justice to his creditor and pay his debt, even by sacrifices if necessary ? He is in breach of his contract. The debt is due. The creditor may in every respect be as needy as he, indeed may be suffering,, and is certainly as much entitled to the aid of the law. Ordinarily the commercial creditor desirous of retaining the custom of his debtor does not appeal to the law until he sees danger of the loss of his claim, nor the poorer creditor until compelled by his necessities ; and when he sees the very danger which the law recognizes, and invites his attention to, and he invokes its aid, he little suspects that, without any fault on his part, he may thereby become involved in still greater difficulties. If the debtor is actually removing his property out of the State, the creditor is not barred of his remedy by his debtor’s intentions. They may be good, but the statute places no reliance upon them. The debtor himself cannot rely upon them ; every day and hour they may be thwarted with the best intentions, his ship may be sunk or other property lost, and the creditor wholly lose his just claim to the security.
Counsel for the appellants wisely argue that “ the debtor cannot justly complain that the arm of the law constrains summary proceedings for obligations ho has neglected or failed to meet, and the security for which he is lessening by transfer of property to another State.” * * * “Now did not the legislature by its last amendment of, the statute manifestly intend to remove all doubt as to the line, fixing it definitely and restrictively upon the simple act of removing the property ?. To permit a more enlarged scope places the right of the creditor in hopeless confusion and uncertainty. He could never know when the writ was allowed him,, and even if the debtor were removing his whole property, if the intent is to enter into the gist of the act there *627might be proof to show ‘ the fairness of the transaction’ which * * * would be fatal to the creditor.’’
I'have stated more than I would but for an intimation that this opinion is not in accordance with the adjudications of eminent jurists of the highest authority in some other States. I well know and fully recognize the danger of doing wrong by departing from the beaten track, and never will fail to yield much to the wisdom of their interpretations of the law. If any of them have decided differently under like statutes and similar circumstances, nothing but the most solemn convictions of conscientious duty could induce me to depart from'the line of interpretation marked out by them. After some search, however, I have not found what appeared to me to be precisely such a case, or one clearly in point, and so do not yet feel obliged to admit the accuracy of the intimation.
After much careful and anxious consideration of the case, and of the rules and principles of law involved in it, fully recognizing, and I trust appreciating, the high qualifications of the learned judge who presided in the circuit court, with cordial respect for his well-known abilities as a jurist, my mind reluctantly concludes that the appeal was well taken, the assignment of errors should be sustained, the judgment of the circuit court, reversed, and the cause remanded to that court for correct proceedings.