The Memphis appeal. [volume] (Memphis, Tenn.) 1886-1890, 1886-03-16
supreme Coars Decision.

" - 0Vhah We l. - CoiNs
Appeal from the Circuit Court OF
Tippah county, Spight and Marmon
for appellant. Charles b. Howry and
j. w, T. Falkner for appellee. Opinion
of the court by Cooper, c. j.
Appellant being in embarrassed cir
cumstances, desired TO make an as
/ 81 inment for the benefit of his credit
ors, with preference to certain ones,
among whom was appellee, and
equally distributing the remainder of
his property, Being sick in bed, he
sent for his attorney, who came with
appellee and the agent of another
creditor, who threatened TO attach if
not included with appellee among pre-
rred creditors. Upon some ground
not suggested bv the record, appel
lant's attorneys informed him that
the assignment he desired TO make
would be invalid, end the creditors
would Immediately begin to attach,
and advised him, instead of making
the assigns ent, to consent that at
tachments might be issued against his
estate. There is conflict of evidence
as to whether or not appellant con
sented TO this, but appellee immedi-
ately made affidavit for attachment,
alleging the single ground that appel.
liant had assigned or disposed, or was
about to assign or dispose of his prop
erty or rights in action, or some part
thereof with intent TO deiraud his
creditors, and on this affidavit the
writ of attachment was issued APP
pellant traversed the ground for suing
out the writ, and there arose the ques-
ton involved, which is whether Il is
permissible for appellant 70 deny the
rightfulness of the attachment to
which he consented Tue Circuit
Court held that he WAS in effect
estopped tob bontrovertthe facts alleged
in plaintiffs affidavit, and judgment
was entered against the defendant.
Held; That there Is no doubt that
at and before the me when the afli-
davit was made for tine writ the de-
fendant had abandoned all idea of
executing the assignment, and that
this fact was well known Ia the plain
tiff, who, according to his own testi
mony, resorted tc the attachment pro-
ceedings by agreement with The de-
fendant, not Because defendant IN
tended to make any transfer Of hit
property honest or fraudulent, bNt
because he lieg determined not to
make any transfer and 10 sobmit'to
the attachment az the means of reach
ing the same end, to-wit, the giving
of preference to Plaintiff 10 secure
the payment Of the debt due him.
We are unable to perceive in what
respect the assignment would have
been fraudulent If made, but conced-
ing that it would have been, all inten-
ton of executing it bad been aban-
doned by the defendant, and In lien
thereof the plaintiff was 10 sue out
the attachment.
There is therefore total absence
tending to prove that the defendant
was about to do any of these things, if
which would subject him TO attach
ment, or that the plaintiff believed he
was about so to do. There is no ele-
ment OF estoppel in the case. The
plaintiff did not believe that defend
ant was about TO dispose of his prop
erty with fraudulent intent, but knew
that he was not, and knowing this be
took such action as was permissible
only TO one who believed the truth I'd I
be as declared by the affidavit, TIE
right tedttachment can not be acquired |
by agreement between two parties =
much less can they in that manne add |
a new ground TO the statute for ssinp
out such process. There was no alle-
CATION in the affidavit that tha debt
sued for had been frauduIenuy con
.racted, and all evidence on this point
should have been ruled out BY the
courts below on the collection made by
he defendant. Reversed and re-
handed.