#### JAMES MORRISON, *pl'ff in error,*vs. ROBERT L. REAM, *def't in error,*

>• *Error to Dane county. )*

Where a writ of attachment is quashed upon motion for the insufficiency of the affidavit, although it has been personally served on the defendant, the suit must be dismissed, with costs, and it cannot proceed as in ordinary cases of summons.

An affidavit which only states the aggregate of the plaintiff’s claim, and shows that the defendant has counter claims as a set-off, but does not state that there is any balance due to the plaintiff, or show the amount that is due, is not sufficient to authorize the issuing of a writ of attachment.

The facts necessary to entitle a party to the writ, must bo proven to the satisfaction of a judge or supreme court commissioner, by legal evidence of the party or a witness; mere belief is not sufficient; nothing but facts and circumstances will do.

Where fraud is charged as the ground for issuing the writ, the judge or commissioner must be satisfied that the fraud exists by proof ot facts and circumstances sufficient to raise such strong presumptions of guilt as would, without contradiction or explanation, induce the officer to convict the defendant of the charge if he was on trial before a petit jury; the mere belief of any person is not sufficient.

If the officer indorses his satisfaction on the affidavit, the court may go behind the indorsement, and examine the affidavit itself; and if the facts and circumstanchs are not sufficiently provento authorize the issuing of the writ, it may be quashed upon motion.

Morrison sued out a writ of attachment against Ream in the Dane District Court, on the 25th March, 1842, founded upon an affidavit, which is embodied in the opinion of the court. The supreme court commissioner before whom the affidavit was made indorsed upon it the following certificate of his satisfaction:

“Agreeably to the requirements of the act approved February 15th, 1842,1 hereby certify, that I am satisfied of the truth of the facts set forth in the above affidavit, and that the plaintiff is entitled to a writ of attachment. Given under my hand, at Madison, this 25 th day of March, 1842.

[Signed] ALBERT W. PARRIS,

Supreme Court Com’r, Dane County.”

The writ of attachment concluded with a summons, and was personally served on the defendant.

At the return term the defendant moved the court to quash the writ, because of the insufficiency of the affidavit, and of the in-dorsement of satisfaction.

The District Court sustained the motion, and dismissed the *84suit; and Morrison sued out this writ of error to reverse the judgment.

Two questions were presented for the consideration of this court: Whether the District Court erred in quashing the attachment; and whether, where the attachment is quashed, and there has been personal service of the summons, it is error to dismiss the suit.

Brigham, for plaintiff in error:

The court below ought not to have quashed the writ upon the motion. The statute affords the defendant a different remedy, by traversing the affidavit; and if the decision shall be in his favor, his’ property is released, and the suit progresses; the writ is not quashed. The writ is two-fold: to attach, and to summon; and if the attachment is bad, the summons should not be quashed, for by it the defendant is brought into court, as in ordinary cases. The court below ought not to have considered the motion, but left the party to his remedy pointed out in the act. The law has made the officer before whom the proof is made the judge whether *the*attachment ought to issue; and if he is satisfied of the facts, and so certifies, the court cannot look beyond his certificate. If ho certifies that the proof before him was sufficient to satisfy his mind that the necessary facts exist, the court is bound to believe that they were proven to his satisfaction. But if the court can look into the affidavit,- and judge of its sufficiency, it will be found that the officer had enough before him to satisfy him that the facts existed.

Clark, for defendant in error:

The court is asked to give a strained construction to the act of 1842. The right of the defendant to traverse the affidavit, and if it appears to be false, to have his property released, does not deprive him of the right to have the writ quashed if it has issued upon an insufficient affidavit. The law makes the affidavit the foundation of the writ itself, and all the proceedings under it. If the affidavit is bad, the writ has improperly issued, and the defendant has been improperly brought into court.

Whiton, in continuation:

The court is not concluded' by the officer’s indorsement of satisfaction. The practice of other courts upon similar statutes iss to look behind the certificate, and see whether the officer ought to have been satisfied; to examine the affidavit, and test its suffi-*85eiency by the statute. 1 Co wen’s Treatise 479, 480. 10 Wendell, 420. 10 John. Rep. 169. *Vosburg vs. Welsh,*11 John. Rep. 175. *Smith vs. Lewis,*14 Wendell, 237.

The court, then, will examine the affidavit in this case, and in doing so, it will be found to be defective in every material requisite. As to the indebtedness, it does not show that Ream owed him any thing. It may be true in every particular, and yet Morrison may be indebted to Ream on a balance of the accounts between them. The facts stated are not sufficient to justify either Morrison or the officer in believing that the charge of fraud was true. The decisions in New York say, that the belief of the party is neither a fact nor a circumstance from which the officer can be satisfied of the existence of a cause for issuing the writ.

Field, in leply:

The New York attachment law is different from ours. There the officer before whom the proof is made must preserve the evidence, that the court may see that he was satisfied upon sufficient testimony. 2 N. Y. Rev. Stat. 162. Therefore, the decisions that have been made in that state, are not conclusive upon the question before this court.

The two statutes are different in another respect. There the party must state a sum certain to be due after allowing all credits and off-sets. Under our statute it is sufficient to state the aggregate of the plaintiff’s, without noticing or showing any set-off of the defendant, leaving that matter for adjudication in the case. The affidavit is sufficient in this particular. It shows the amount of Ream’s indebtedness, that it arises out of contract, and for what consideration.

The District Court certainly erred in quashing the writ, and dismissing the suit. The most that would be proper in the case, under the provisions of the statute, considering them all together, would be to quash the attaching part cf the writ, and release the property, without dismissing the suit. The attachment is only in aid of the summons. The summons brings the party into court to answer the action; the attachment holds the property subject to the judgment that may be obtained, to guard against the fraud of the defendant. In this case, the defendant was as properly brought into court by this writ as he would have been by an ordinary summons, and he ought to be held to answer the action.

Judge Miller

delivered the opinion of the court:

*86This cause was commenced by attachment in the District Court of Dano county, by the plaintiff in error against the defendant in error, on the following affidavit: “James Morrison, being duly sworn, doth depose and say, that Robert L. Ream is justly indebted to him, for goods, wares and merchandise sold and delivered, money lent, paid, laid out and expended for the use of said Ream, in the sum of two hundred, eighty-two dollars and sixty-six cents, not deducting certain counter demands and set-off claims against the above claim in favor of said defendant, the exact amount of which counter demands this affiant is not knowing: And this af-fiant swears that his whole claim arises from, and is founded in, contract: This affiant further deposes and says, that said Ream is about fraudulently to dispose of his property, so as to hinder or delay him, the said James Morrison in the collection of his said demands against him, as this affiant verily believes; because this affiant has frequently requested said Ream to settle and pay him his said demands, or to meet him for the purpose of adjusting the same, and he has refused so to do, assigning no reasonable cause for neglecting to meet this affiant, and settling his said demand; and further, said Ream very recently sold off his goods and effects, or the principal part of them, as this affiant verily believes, and is about to remove, with his family, out of this county, and to leave no property, to the knowledge of this affiant, on which an execution can be levied or satisfied.” Which affidavit was endorsed, satisfied, by a supreme court commissioner.

On motion, on the part of the defendant, the District Court dismissed the proceedings. In this there was no error.

The affidavit leaves the amount claimed too vague and uncertain; and the alledged fraud, is very far from being such a case as to warrant this writ. It cannot be pretended that this affidavit shows that the defendant was about fraudulently to dispose of his property to defeat or delay his creditor.

The facts necessary to entitle a party to a writ of attachment, must be proven to the satisfaction of judge or commissioner, and the circumstances upon which the belief of the affiant is founded; and by the act of Feb. 15,1842, should be embodied in the deposition. Proof, that is, legal evidence, from the party or a witness, is required. Mere belief is not sufficient. Nothing short of facts and circumstances within the knowledge of the affiant will do; 11 John, 175. The Supreme Court of New York, through *87a long train of decisions, have settled the practice, that the insufficiency of the proof, may be taken advantage of by a motion to quash; 1 Cowen’s Treatise, 480. Belief, report, information, or suspicion, are not sufficient; 10 Wendell, 420. The officer must be satisfied, and he must be so satisfied from proof of facts and circumstances, not from the belief of any one. Such facts must be proven, as will leave no reasonable doubt on the mind of the officer, that the defendant is about to commit the fraudulent acts mentioned in the statute. For instance, if the party proves positively, that the defendant declared his intention to remove or sell his property to avoid the payment of his debts, the officer could draw his own conclusions; 14 Wendell, 237. 3 Cowen, 206. 14 John. 175, 257. 6 Wendell, 438. 6 Cowen, 234. The requirements of the act should be strictly fulfilled; 3 Cow-en, 206. As this is an allegation of fraud, and in its nature a criminal proceeding, the officer should have, at least, such strong presumptive proof, as, being uncontradicted or unexplained, would induce him to convict the defendant of the charge, if he were on trial before the petit jury; 10 Wendell, 608.

In this case there is nothing to traverse; the fact set forth in the affidavit not being sufficient to lay the foundation for the writ. When a writ has been served on the defendant, the publication of notice is dispensed with, so is also the entering of the defaults, but the defendant must appear and plead, as in other cases. It is contended that when the writ was obtained upon proof, and -upon a traverse of the facts it is-made to appear that they arc not true or well founded, then, by the direction of the statute, the suit becomes nothing more than if it had been commenced on summons. But it would load to oppression, if we were to put such a liberal construction upon the act as to save the suit and the costs to the plaintiff in such a case, or a case like the present. The fourth section of the act authorizes a traverse of the facts set forth in the affidavit, and if their falsity should be made to appear, the property attached shall be released. The act no where says that if the attachment is abated or quashed, that the suit shall be and remain as in cases of a summons. By the seventh section, in case of personal service of the writ upon the defendant, it shall not be necessary to call the defendant and have his default entered, but the suit shall proceed as in ordinary cases of summons, and no notice shall be required to bo published, as required by the *88third section of the act to which this is amendatory. From the reading of this section, it is apparent that the only object of the legislature in providing for the annexation of a summons to the writ of attachment was as herein stated, and cannot be construed to extend- to the relief of a party who has obtained a writ of attachment, without having strictiy complied with the pre-requisites of the statute.

Brigham and Field, for pl’if in error.

Clark and Whiton, for def’t in error.

The judgment is therefore affirmed with costs.