#### Lorrain v. Higgins, Administrator, etc.

1. Attachment — aeeidavit.—In a proceeding by attachment under the late territorial statute, a party must, in his affidavit, swear to his belief of the existence of a statutory cause for the allowance of the writ, and set forth facts and circumstances sufficient to show that the alleged cause for issuing the writ exists.

2. Same. — An affidavit alleged that the defendant was making secret preparations to leave for Ireland, without any ostensible business to take him there, but did not disclose the nature or character of such preparations, or show that he was making them with intent to abscond. *Held,*insufficient to warrant the allowance of the writ.

3. Same — costs.—-Where an attachment is quashed for want of a sufficient affidavit, judgment may be rendered against the plaintiff for full costs.

(2 *Ohand.*116.)

ERROR to the Circuit Court of *La Fayette*County.

This was a proceeding by attachment, under the statute, founded on a promissory note. The affidavit made by the plaintiff," upon which the attachment issued, was as follows : Wisconsin Territory, )

*La Fayette*County, j

*John*Lorrain, of lawful age, being first duly sworn, deposes and says, that *William*Mead, of the county of La Payette aforesaid, is justly indebted to him (this deponent) in the sum of one hundred and thirty-one dollars and thirty cents, after allowing all just offsets and credits, upon a demand founded upon or sounding in contract, to wit, upon a promissory note, which said note is in the words and figures following, to wit: *455
      *“*$131.80. One day after date I promise to pay to *John Lor-rain,*or bis order, one hundred and thirty-one dollars and thirty cents, for value receivedthis deponent says that he has good reason to believe and does believe that the said *William Mead*is about to depart from the territory of Wisconsin, with intent to abscond; and that the circumstances upon which the belief of such facts is founded are, that the said *Mead*is making secret preparations to leave this country for Ireland, a portion of the British dominions, without any ostensible business to take him there; and as a further circumstance, this deponent says that the said *William Mead,*some time in the month of July last past, on or about the eighth day thereof, took out a license, from the board of county commissioners of La Eayette county aforesaid, to keep a grocery and to sell strong and spirituous liquors and wines in his grocery house in the village of Shullsburg, in the county of La Fayette aforesaid, and that he has procured one *John Higgins*to take his said grocery and sell liquors and wines as aforesaid and under the aforesaid license; and this deponent further says, that he has understood from various individuals that the said *Mead*has been making arrangements to leave for the aforesaid place; and this deponent further says, that he verily believes that unless a writ of attachment is issued, he is in danger of losing his said demand ; and further this deponent says UOt. JOHN LORRAIN.

After the attachment was executed by the sheriff and the appraisal made, and the proceedings returned into court, the defendant made a motion to quash the attachment, and assigned the following causes for that purpose, to wit:

1. That there is no sufficient affidavit to authorize the issuing thereof.

2. That there are no facts set up in the affidavit, on which the attachment issued, on which an issue can be taken.

3. That the facts set up in the affidavit are not sufficient to warrant the belief that *William Mead*was about to abscond, *456or to justify tbe order for tbe issuing tbe attachment. Tbe defendant, Mead, died, and tbe suit was revived and continued against *Higgins*as bis administrator.

Tbe court granted the motion and quashed tbe attachment.

Tbe counsel for tbe plaintiff in error excepted to tbe ruling, and tbe cause came here upon a writ of error.

*J. H.*Enowlton, for plaintiff in error.

*Robinson & Culver,*for'defendant in error.

Larrabee, J.

This is one of a numerous class of cases under tbe attachment law of tbe late territory, but now repealed by tbe revised statutes of tbe state.

Tbe first question is upon tbe sufficiency of the affidavit upon which tbe writ of attachment issued. It states that tbe defendant “ is making secret preparations to leave this country for Ireland,” and that be has procured a third person to manage bis grocery business. Tbe statute required tbe plaintiff’ to swear to bis own belief of tbe intent to abscond, and to set forth tbe facts and circumstances upon which that belief is founded. Now, tbe mere statement that tbe defendant was, in tbe opinion of tbe plaintiff, making secret preparations to leave for Ireland is not such a fact as would authorize tbe court to conclude that be was m reality making preparations to abscond. It is apparent that no *fact*has been stated; for we ask, at once, what were those preparations ? What has tbe defendant done to warrant tbe conclusion that be intends to abscond ?

Tbe plaintiff might have been entirely in error as to tbe character of these preparations, and still tbe court could not conclude that such preparations bad in fact been made. Preparations might have been made for a different object, tbe farthest removed from an intent to abscond; in fact, with an intent to fix bis residence more permanently in tbe state; and tbe plaintiff, clamorous for bis debt, and open to view with jealous eye every movement of bis debtor, might be ready to swear at once that these preparations were evidence, to bis *457mind, of an intent to abscond. The plaintiff should have stated what the facts were, constituting what he calls “prepar rations,” that the corat might know whether there was sufficient legal evidence upon which his belief was founded.

Another point presented, and the only one remaining that is necessary to decide, is, whether, upon the dismissal of the suit for the insufficiency of the affidavit, the court could render judgment against the plaintiff for costs. As a general rule, it is well settled that where there is no jurisdiction the court can give only the costs of the motion, and not the general costs of the suit. But it was the uniform practice of the late territorial district courts to give costs in similar proceedings, and we are not disposed, at this late day, to overrule this doctrine, and especially as we are not, in view of the repeal of this law, called upon to lay down a rule for the future. The affidavit in this case was colorable, at least, and sufficient to give the court jurisdiction to render judgment for full costs.

Judgment affirmed.