Desha v. Solomons

Martin J., delivered the opinion of the court. The plaintiffs, on filing an affidavit, that the sum of one thousand seven hundred and twenty-seven dollars and forty-six cents, was due them by the defendants, on a note not yet payable, and that S. P. Solomons, one of them, was about to remove out of the state for the purpose of defrauding his creditors, obtained an order from the clerk for his arrest, upon which he was imprisoned. On the following day they filed their petition. A rule was taken on the plaintiff, to show cause why Solomons should not be discharged, on the ground that the affidavit was insufficient, and that the facts therein stated, were untrue. The plaintiffs then filed another affidavit, whereupon they obtained a second order from the clerk ; and a second rule having been obtained for the plaintiffs, to show cause why the defendant should not be discharged, it was made absolute, and the plaintiffs appealed. The first affidavit stated, as the ground of the plaintiff’s belief of Solomons’ intention to defraud his creditors, was : 1st. That the defendant being largely indebted, has given out that he intends travelling northward, and has procured letters accordingly; while his real intention is, to go to Texas. In the second affidavit, the grounds of the plaintiffs’ belief are stated, as in the first; and farther, that the goods purchased by the defendants from the plaintiffs, were alleged to be bought for their store in Aberdeen, (Mississippi) but were secretly packed up and brought to New-Orleans, and thence taken up the river; that Solomons • travelled under a fiotitimv? name ncuuousname. The discharge was moved for on the ground : 1st, That ,- , 0 . , the facts stated in the first affidavit, do not m law or reason, *278 justify the plaintiff’s belief, or the inference drawn, and are untrue ; that the petition sets out no cause of action that the second affidavit was filed, and the order of arrest thereon 'ssuecb without the order of the judge ; that the arrest was not authorized by the laws of Alabama where the debt was contraoted ' informality1' in thfte^an^rrest legally made, ' It appears to us, the parish judge erred. The fact, that Solomons gave out that he was going northwardly, while he rea^y intended to remove to Texas, is sworn to, and not disproved. In our opinion, it formed a ground of suspicion, which justified the plaintiff in resorting to legal measures, f°r the security of his debt*; no error or informality in the petition, vitiates an arrest legally made. As we are of .. . ¶/, . ° ^ • . . opinion that the firpt affidavit was sufficient, it is unnecessary to examine the second ; the remedy was properly sought, accol’diug to the lex fori, without any regard to the lex loci COVllVCtCtUS. It is, therefore, ordered, adjudged and decreed, that the judgment of the Parish Court, be annulled, avoided and reversed, and that the rule obtained by Solomons against the plaintiffs, be discharged, and that he pay costs in both courts.