Saint Paul weekly Minnesotian., 1859-10-29
Judge Nelson's Decision.
The following is the decision in full, re-
farred To in our colnmns on Saturday

l
The following is the decision in full, re-
ferred to in our columns on Saturday.
UNITED STATES DISTRICT Court.
Selah Chamberlain against Caldwell q Go.
Motion to vacate Warrant of Attachment.
The motion in this case must be granted.
The allegation of facts set forth in the original
affidavit upon which the warrant Of attach
ment issued, comes far short of meeting the
well settled rule of construction given the
statute by the State Courts.
Neither do any of the affidavits read in op-
position to the motion at the hearing, assist
the plaintiff.
The original affidavit of the agent of the
plaintiff, after setting forth the cause of action
(the claim being $2,267 ss) alleged as ground
for the issuing Of the attachment:
/. That the defendants held themselves out |
to the plaintiff and the community as solvent |
men, doing legitimate business, with means
to meet all their liabilities, and upon the faith
of such representation, plaintiff entrusted his
money with them
find, upon examining the affidavit, that no
representations or statement of such char
acter were ever made by the defendants to
the plaintiffs, nor is the substance of any con-
versation given in the original affidavit, or
any of the others used at the hearing, which
would sustain the charge; but, on the con
trary, the affidavit of the plaintiff negatives
any such idea. His version of the manner
| in which the Indebtedness accrued, shows an
! ordinary business transaction, and the SOL
yency or insolvency of the defendants does
not seem to have influenced him in any way
| In his own language, they drew upon me,
"without permission or authority, which draft
| I for the credit of said defendants, and at
their urgent request and solicitation, paid in
New York, at very considerable inconven-
ience, upon the express promise and assu-
rance of said defendants, that they would re-
place it by paying the amount in ST. Paul,
within two weeks from the time of such con-
versation.
The other affidavits do not sustain the ale
CATION that the defendants held themselves out
to the community as s0iuent men.
They show no special representation on
their part to induce the community to do
business with them. The mere belief of the
deponents is stated, based upon no legitimate
or legal facts.
Il III. That with intent to delay and hinder
their creditors and for the purpose of cover
ing up their property, the defendants on the
, Sth of August, 1859, executed to their Book
f keeper, .. B. Turrell, a person pecuniarily ir-
, responsible, an assignment purporting to be a
general assignment of all their effects real and
personal.
i If this charge was sustained by any facts
, within the knowledge of the deponent or by
an affidavit of any other individual, then there
would clearly be good reason for the depo
nent to believe the plaintiff would lose hi!
debt.
e Such is not the case however. The opin
$ ion of the deponent as to the intent to delay
G and hinder creditors is founded upon the fac
that the assignment was made to their Book
keeper, whom he alleged to be irresponsible
n pecuniarily. Now that fact is by no mean
a Inconsistent with the good faith of the defend
ants The books are full of authority sustain
ing assignments made to clerks, cashiers
bOokkeepers or other employees.
The further allegation that the defendant
who were engaged in the banking business
received deposits up to the usual hour of clos
l. ing their office does not negative the idea {
IN intent to protect creditors by the assignmen
of The law recognizes convcyances for the be,
lp eft of creditors, which give preference
some over others, and it is left to the assignt
n to discriminate and classify them. The la
"a depositor or the last creditor has no better
he gal claim than any previous one.
w nave COIlSluCIGu lIllS iHOlIOl, illus Id
e. without examining the affiadavit of the d.
t. fendents which was read upon the hearing
* The other allegations in the original AFFIDAVIT
at relating to the transfer Of property just pr
ne vous to the execution of the assignment, al
ne either sufficiently rebutted by this affidavit
at or such statements given as would not justii
Sc us, upon this motion, to decide upon the val'
In ity Of that assignment
On We are satisfied that the attachment mu
I'd fall. r. r. NELSON,
IS U. S. Dist Judge.
- The following is the opinion in the cases
or Mayall VS.. Caldwell & Co.:
OF Attachments were granted the plaintiffs
v, two suits, and both motions were argued
at vacate at the same time. The affidavits
IN not in either case come up to the requir
es ments of the statute. Conclusions of law a.
to stated by the deponents, and his opinion
81 belief only given. In order to sustain an a
" tachment, under the statute, lit must appes
yyn to the court by affidavit" &c; that is, whe
n ever legal evidence is offered, going to estal
I'd lish the fact that the defendants have assigne
is their property with intent to defraud, &C., 9
in attachment may issue.
he This attachment must be vacated in bot
n suits. r. Il. NELSON.