The Minnesotian. [volume] (St. Paul, Minn. Territory) 1851-1852, 1852-02-14

This is " an action for the recovery of
money!" and it was commenced by "sum-
MONS" The term complaint" used in
the Revised Statutes, page 346, sec. 1873
is only a new name for declaration
The only difficulty in making the applica-
ton, is, that it is provided by that Sec
ton, that the amount of the plaintiffs de-
mand must be stated in the attachment
in conformity with the complaint" His
demand in this case is stated in the at
tachment at four hundred and twenty
eight dollars and forty cents; put in the
complaint at one thousand dollars. The
object in requiring the warrant to con-
form to the declaration was, to preclude
an attachment from being issued for part
of demand, or one of several demands
included in the same suit, which would
be inconvenient and tend to confusion
and also to prevent the seizure of prop
ertyto larger amount than would be
sufficient to secure the sum demanded in
the complaint. This last was undoubted-
ly the principal reason. The defendant
has not been injured by having his prop
erty attached for less than is demanded
in the declaration, but there is discrep-
ancy in the plaintiffs allegations and pro-
ceedings in the suit, which ought to be
corrected, in order to render them
strictly regular, and preserve that order
consistency, and symmetry always ne
cessary to facilitate the administration of
justice, and render the records of judicial
proceedings Ineligible. Althoug Oh there
are two counts in the declaration, which
concludes with claim for one thousand
dollars, it appears from the affidavit on
which the attachment was granted, that
the suit was brought to recover bal
ance due upon promissory note set
forth in one of the counts, corresponding
in amount with the sum stated in the
attachment, which is the whole of the
plaintiffs demand. There is no good
reason therefore, why the plaintiff should
not be allowed to amend his declaration,
on terms, SO as to make it conform to the
attachment and the requirments of the
statute, under the power given by sec.
80, page $40, R, S. The "furtheance
of Justice" would seem to require it to
be done, if nothing more is wanting to
uphold his proceedings.
And this brings Us to the only remain
ing point raised upon the argument of this
motion. The defendment, as he may do,
under sections l53 and l54, 349 r. S.,
comes into court with an affidavit on his
part, to show that there was no Just or
reasonable cause for the plaintiff to fear
the loss Of his debt, as stated in the aft
davit on which the attachment issued
He sets forth that his liabilities do not
exceed the sum of twelve hundred dollars;
and that aside from what real and per-
sonal property he has in Benton county,
there is due to him from government and
various individuals, which he believes to
be easily collectable, more than twenty
five h...l--l loli.., anu ne also SWearS
to defence on the merits. The proper
ty of the defendant in Benton county can
not be taken into account, because he
does not state what it is, nor how much
there is of it, nor that it is worth do
lar. 1t does not appear how much his
claim is against the government, nor that
it has been liquidated, nor what persons
are indebted to him, or in what amounts.
His expose of his affairs is meagre and
unsatisfactory. Rights in actions against
others, may or may not be easily collect
able, and the defendant may very easily
be mistaken in his belief, or if they can
be readily realized and converted into
money, they or their proceeds may be
disposed OF as readily. 1t is therefore
from his own showing, difficult for the
court to pronounce, that the demand
sought to be recoved in this suit against
the defendant would be amply secure if
the attachment were set aside.
The plaintiff objects to the use of this
affidavit for the reason that copy of it
was not not served on him along with
the notice of this motion, that he is there
fore taken by surprise, and has had no
sufficient opportunity to answer it. The
mode of proceeding differs in different
States, but am inclined to the opinion
that the more correct practice is, to serve
copies of all papers, not part of the rec
ords or files of the court, when such cop
les have not been before served, on which
motion is to be founded, along with the
notice Of motion, and to specify in the no.
tice, upon what papers it will be made.
This is in conformity with the N. York
practice, and gives the opposite party a
better opportunity to answer them. The
statements of his points in notice of
motion, by the mover, does not always
apprize his antagonist what show of facts
will be brought forward to sustain them,
nor give him sufficient opportunity to re-
but it.
In this case, the plaintiff has to rely
upon an affidavit hastily drawn up by his
counsel in court, to meet that of the de-
PENDANT. There is enough in it however
to sustain his attachment. On motion to
vacate an attachment, where the plaintiff