Roddey v. Erwin

Citations

• 31 S.C. 36
• 9 S.E. 729
• 1889 S.C. LEXIS 6

Syllabus

<p>1. Allegations “that defendant has disposed of the greater part of his property and is about to dispose of the remainder thereof, with intent to defraud his creditors, and has left the State with like intent,” are sufficient to sustain a warrant of attachment, when these allegations are made to appear by affidavit and are supported by the matters therein stated. Removal from the State would by itself seem to be an all-sufficient allegation.</p> <p>2. The cause of action was sufficiently stated here in an affidavit of plaintiff made at the time, together with a former affidavit therein referred to and adopted.</p> <p>3. Eunds in the sheriff’s hands belonging to the defendant in execution or attachment, and payable to him, are not protected from attachment for his debts under the principle of custodia legis. Funds of defendant held by sheriff as proceeds of a vacated attachment, may be levied under a second warrant.</p> <p>4. Whether a warrant of attachment was regularly issued by the clerk of court on sufficient affidavits, must be determined alone by the affidavits submitted to the clerk when he acted.</p> <p>5. An allegation that defendant has disposed of his property and is about to leave the State, is sustained by defendant’s subsequent disposal of his property and removal from the State.</p> <p>6. Fraudulent intent is a condition of the mind beyond the reach of the senses, and can only be proved by unguarded expressions, conduct, and circumstances.</p> <p>7.’ It would seem that affidavits containing averments of facts, based upon. information and belief, are sufficient to sustain the issue of a warrant of attachment, where the sources of information are fully and particularly stated. But the allegations of facts showing a fraudulent intent, were prima facia sufficient in this case, without the aid of the matters stated as hearsay.</p>