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Ellison agt. Bernstein.

(con

6th. “That defendant has recently refused to secure claims against him, though large discounts were offered.”

7th. That defendant has admitted inability to pay his debts as they matured, and that “he would secure or take care of the

persons to whom he claimed to owe fidential' moneys to the exclusion of other creditors."

8th. “That defendant owns no real estate, but all the real estate of which he is possessed is in the name of his wife.”

9th. That defendant is pressed by creditors, and the Gladke attachment is referred to in the two other cases.

The ground upon which these attachments are sought to be maintained is that plaintiffs have established, as the 636 section of the Code requires them to establish, that the defendant “has assigned, disposed of or secreted, or is about to assign, dispose of or secrete property,” with intent to defraud his creditors.

As the plaintiffs seek an extraordinary remedy founded on ex parte affidavits, it is not too much to require that they make out a plain case. This remark has often been made, and much more often disregarded. It matters not what a person believes or disbelieves the applicant for an attachment must show by proof of facts known to the witnesses who testify to them, that the belief in the intent to defraud by a disposition of the property is well founded. In other words, the intent so to defraud must be a fair and logical sequence from facts proved.

The first criticism to be made upon the affidavits is, how do the affiants know that the defendant is insolvent; that he made other purchases to the value of $12,000 or $15,000, when all the goods he would naturally require was only $3,000; that his indebtedness is $17,000, and his assets only half that sum; that he had not yet paid for his spring purchases, and that he intends to dispose of his property with intent to defraud his creditors ? Evidently these are facts not within the personal knowledge of the witnesses. They must have been unknown to the plaintiffs when the goods were

Ellison agt. Bernstein.

sold, for if they had been, the sales would not have been made, and therefore the statements made must be the result, not of actual knowledge, but of subsequent inquiries. It is not enough that a witness is willing to testify to a fact positively; he will not be allowed so to testify, when it is plain that he can have no actual knowledge on the subject. The sources of information must be given, so that the tribunal called upon to act can see that the facts sought to be proved are established by legitimate testimony. The ordinary witness does not as a rule discriminate between actual knowledge and information, and a party who readily believes what it is his interest to believe, should, in an ex parte affidavit, show that he has knowledge, if he wishes his statement to be taken as evidence.

Assuming, however, the truth of the facts, that the defendant was insolvent when he made the purchases — that he bought more goods than he needed, and that he failed to disclose his insolvency — under the authority of Nichols agt. Pinner (18 N. Y., 295), these facts, in the absence of any false statements, are not sufficient to show an intent to defraud. Wright agt. Brown (67 N. Y., page 1), and the case marked

Anonymous," on page 98 of the same volume, are not in conflict with that just cited, but on the contrary its soundness is recognized. There is no such detailed statement in these cases of debts and resources, of past, present and possible future business of defendant, as to justify the inference that the defendant knew when he made these purchases that he could not pay for them, and therefore meant to defraud.

The remaining grounds for the issue of the attachments are equally bad. It was no evidence of intent to defraud, that the defendant refused to secure the plaintiffs ( Vandenburgh agt. Hendricks, 17 Barbour, 179), and so long as the law allows preferences to creditors by a failing debtor, it certainly cannot be proof of intent to defraud that the defendant intends to do what the law permits.

The attachments must be vacated with costs. If, however, the plaintiffs in either action wish to review this decision, the

McCoon agt. White.

operation of the orders to be entered will be stayed for ten days to enable them to make an application to the court for a further stay pending an appeal upon such terms as shall be just.

NOTE. — The decision in this case was afirmed at general term in November, 1880.—[REP.

N. Y. COMMON PLEAS.

MoCoon agt. WHITE.

Kaamination of parties before trial requisites of an application by defendant

for the examination of plaintif where the suit is upon a promissory note Code of Civil Procedure, sections 872, 873.

It was a well settled rule that the complainant in a bill of discovery

must show a good cause of action or a good defense. This is still an indispensable requisite of an application for the examination of an

adversary. Whilst there is no reason for introducing the unwarranted and unwar

rantable rule that a party who seeks to examine his adversary before trial must swear that he intends to introduce the examination as evidence on the trial, it is eminently proper to adhere to the equity practice which required the party seeking a discovery to state that he expected to prove by the examination the facts which he alleges to lie peculiarily

within the knowledge of the person whom he seeks to examine. In an action on a promissory note where the defendant seeks to examine

the plaintiff before answer the affidavit is defective, in that it does not state that the defendant expects to prove that the note in suit was not, either before it matured or at the time of its maturity, in the bands of one who could have collected it from the defendant, and that it came

after its maturity into the hands of the defendant. The affidavit is also defective where, admitting everything it alleges, it

does not show that the defendant has a defense.

Special Term, December, 1880.

VAN HOESEN, J. — The affidavit of the defendant is defective in this, that it does not state that the defendant expects to

McCoon agt. White.

prove that the note in suit was not, either before it matured or at the time of its maturity, in the hands of one who could have collected it from the defendant, and that it came after its maturity into the hands of the plaintiff. While there is no reason for introducing the unwarranted and unwarrantable rule that a party who seeks to examine his adversary before trial must swear that he intends to introduce the examination as evidence on the trial, it is eminently proper to adhere to the equity practice which required the party seeking a discovery to state that he expected to prove by the examination the facts which he alleges to lie peculiarily within the knowledge of the person whom he seeks to examine (Primmer agt. Patten, 32 Ills., 528; Barbour's Chancery Prac. [2d ed.], vol. 2, marginal page 106, note 20). The affidavit is also defective because, admitting everything it alleges, it does not show that the defendant has a defense. It would not constitute a defense that the note was given for the accommodation of the payee, and that it came after maturity into the bands of the plaintiff, who parted with no value when he received it. Suppose that the note when it matured, or previously to that time, was in the hands of a bona fide holder, what defense would the defendant then have conceding the truth of everything he states? It was a settled rule that the complainant in a bill of discovery must show a good cause of action or a good defense. This is still an indispensable requisite of an application for the examination of an adversary (Williams agt. Harden, 1 Barb. Ch., 298). The motion for the exam. ination of the plaintiff must be dismissed, with ten dollars costs, but with leave to renew on further papers, and the defendant's time to answer will be extended twenty days.

Kennedy agt. Kennedy.

N. Y. SUPERIOR COURT.

MARGARET KENNEDY agt. WILLIAM H. KENNEDY.

Divorce - What necessary to sustain action for, on the ground of cruel and

inhuman treatment.

In an action for a limited divorce on the ground of cruel and inhuman

treatment, it is unnecessary to sustain the charge that there should be

personal violence Threats and menace from which danger to health or life may be appre

hended is sufficient, though the cause of apprehension should not only be weighty but such as clearly showing that the duties and obligations

of the marriage state cannot be discharged. Charges of infidelity, made maliciously without probable cause, are sufi

cient to sustain the action

General Term, December, 1880.

Before SPEIR and RUSSELL, JJ.

Roger A. Pryor, for plaintiff.

Develin & Miller and W. A. Beach, for defendant.

SPEIR, J.— The action is brought by plaintiff, the wife of the defendant, for a limited divorce, on the allegation of cruel and inhuman treatment, and for such conduct on the part of the husband towards his wife as rendered it unsafe and improper for her to cohabit with him.

Upon a careful examination of the record, we see no reason for complaint in regard to the findings of the facts by the court below. The only question which it is necessary to examine on this appeal, therefore, is one of law, and it was earnestly discussed by counsel on the argument. The defendant claims that the evidence did not uphold the legal conelusions of the court. In support of this proposition refer

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