
    *Claflin & Co. v. Steenbock & Co.
    June Term, 1868,
    Richmond.
    1. Attachments — Abatement of — Jurisdiction of Courts —Where an attachment has "been sued, out under § 2 of ch. 151 of the Code, ed. 1860, in a suitpending in a county or corporation court, though the defendant has given a forthcoming “bond, the court has jurisdiction at a monthly term of the court to abate the attachment.
    2. Same — Same—Insufficient Cause — Jury Waived.-— On a motion to abate an attachment on the ground that it was issued on false suggestions and without sufficient cause, the plaintiff declining to express any wish for a jury, and the defendant expressing a wish that a jury might be dispensed with,-and that the court should hear and decide the case; the court should hear and decide it with out a jury-
    3. Same — Same—Same—Question in issue. — Though in an action for maliciously suing out an attachment, the plaintiff cannot recover if it appears that the defendant, in suing out the attachment, acted dona y&rfeand upon such apparent grounds as justified him in believing that the facts really existed which would authorize its issue; yet upon a motion, under § 22, ch. 151 of the Code, to abate the attachment on the ground that it has been issued on false suggestions or without sufficient cause, the question is whether, upon all the evidence, there was reasonable ground or probable cause to believe the defendant was doing the act which would authorize the attachment; and not whether the facts as they appeared to the affiant, though only a small part perhaps of the case, afforded him reasonable ground for such a belief.
    4. Appellate Practice — Cause Heard by Judge — Excep= tion to Decision.  — When a cause is heard by the Judge, and there is an exception to his decision, the whole evidence is spread upon the record, and the appellate court must regard the case as upon a demurrer to evidence, considering the appellant as the demurrant.
    *On the 10th of April, 1867, H, B. Clafiin & Co., wholesale dry goods merchants of New York, sued out of the clerk's office of the Hustings Court of the. city of Richmond a writ in case, against J. Steenbock & Co., dry goods merchants in Richmond, returnable to the May rules, laying their danlages at fifty thousand dollars. On the same day Moses T. Davis, the agent of Claflin & Co.,' made oath before the clerk of the said court, that he believed their claim to be just, and that they ought to recover at least forty-eight thousand dollars; and that he believed that the defendants were removing their1 estate, or the proceeds of the sale of their property, or a material part of such estate or proceeds, out of this State, so that process of execution on a judgment in said suit, when it should be obtained, would be unavailing. On this affidavit an attachment 'was issued, by which the sergeant of the city was directed to -attach the estate of the defendants for the amount of forty-eight thousand dollars ; and the sergeant levied the same on their stock of goods in their store in the city of Richmond. In July, Steenbock & Co. gave a forthcoming bond, and thus released the property from the attachment.
    
      At the June rules the plaintiffs filed their declaration in their suit. The first count was in trover, the second in detinue, and the third was for a deceit and false representation in the purchase of a large amount of goods by the defendants from the plaintiffs.
    Whilst the cause was pending in court, the defendants Steenbock & Co., at the December term of the court for 1867, moved the court to abate the attachment, on the ground that the same was issued upon false suggestions and without sufficient cause; and the plaintiffs objected to the court’s entertaining the motion, on the ground that the same was cognizable only at the quarterly terms of the court; and that the December term, being a monthly term, *the court could not then entertain the motion. But the court overruled. the objection, and determined to hear the motion; and the plaintiffs excepted.
    After the court had decided .to hear the motion, the plaintiffs and defendants were requested to state whether they desired a jury to be empanelled to ascertain the issue of fact arising upon the motion; whereupon the plaintiffs declined to express any desire upon the subject; and the defendants stated that they did not wjs.h a jury em-panelled, but desired that the matter should be heard by the court without the intervention of a jury; whereupon the court was of opinion, that it was not proper, in such circumstances, that a jury should be ex-panelled ; and the plaintiffs again excepted.
    The court then proceeded to hear the evidence, when an immense amount of testimony was introduced by the plaintiffs and defendants, .some inf he form of depositions, and some given orally in court, and reduced to writing. And the court held, that the attachment was issued upon false suggestions and without sufficient cause, and rendered judgement that the attachment be abated. To this judgment of the court the plaintiffs again excepted; and the whole evidence was spread upon the record. And they thereupon applied to a judge of this court for a supersedeas to the judgment; which was awarded.
    The last exception involves a simple question of fact, and it would be as useless as it is impossible to give a statement of the evidence bearing upon it. •
    Ould, Ryons and Gilmer, for the appellants.
    Williams and Crump, for the appellees.
    
      
      The principal case is cited in Withers v. Fuller, 30 Gratt. 552, and note.
      
    
    
      
       Attachments — Abatement of — insufficiency of Cause —Jury Waived. — The principal case is quoted from in Wallace v. McCarty, 8 W. Va. 199.
      Attachments — In General. — Por the proposition that the proceeding by attachment is an extraordinary remedy, and is susceptible of great abuse, it is therefore closely watched and never sustained unless all.the requirements of the law have been complied with, the principal case is quoted with approval, in Ballard v. Great Western Mining Co., 89 W. Va. 401, 19 S. E. Rep. 518; Crim v. Harmon, 88 W. Va. 600, 18 S. E. Rep. 754; Long v. Ryan, 30 Gratt. 724, and note.
      
      See, in accord, Delaplain & Co. v. Armstrong, 21 W. Va. 211.
      In Altmeyer v. Caulfield, 37 W. Va. 856, 17 S. E. Rep. 412, Judge Dent, who dissented upon the facts in the case, stated the law however in accordance with the above, saying; “The remedy by attachment is harsh, not only towards the defendant, but also to the other creditors over whom the attachment creditors obtain priority, and should be strictly confined within the limits prescribed, and in a careful compliance with the requirements of the statute as to what the affidavit should contain and express is most just and reasonable. There being a plain direction of the statute violated by the appellant in the preparation of the affidavit, notwithstanding it may be apparent from the affidavit, taken as true, that he is justly entitled to recover, in any event, the sum stated, the circuit court committed no error in quashing the attachment. Claflin v. Steenbock, 18 Gratt. 854; Capehart v. Dowery, 10 W. Va. 130; Sandheger v. Hosey, 26 W. Va. 224; Ruhl v. Rogers, 29 W. Va. 779, 2 S. E. Rep. 798.”
      In Benn v. Hatcher, 81 Va. 35, the principal case is followed on the point that, the affidavit may be made by the plaintiff’s agent, that case going further however, and holding that a third person, who has knowledge of the facts, may make the affidavit.
      
      Attachments — Abatement of — Insufficient Cause-Question in Issue. — For the proposition that, the remed3r for attachments is justified, not by the belief of the affiant, however honestly entertained upon reasonable grounds, that the facts sworn to in the affidavit exist but by the existence of the fact, the principal case is cited and followed in Sublett v. Wood, 76 Va. 318; Starke v. Scott, 78 Va. 185.
      See also, discussion in 1 Va. Law Reg. 233, where the principal case among others is cited.
      See, upon the subject of probable canse, Burkhart v. Jennings, 2 W. Va. 242; Spengler v. Davy, 15 Gratt. 381; Burruss v. Trant, 88 Va. 980, 14 S. E. Rep. 845; Wright v. Rambo, 21 Gratt. 158, and note.
      
    
    
      
      Appellate Practice — Cause Heard by Judge — Bxcep= tion to Decision. — For the proposition that, where a cause is heard by a judge and there are exceptions to his ruling and the evidence is spread upon record, the appellate court must regard the case as upon a demurrer to the evidence, considering the appellant as the demurrant, the principal case is cited and followed in Ramsburg v. Erb, 16 W. Va. 787; Nutter v. Sydenstricker, 11 W. Va. 542; State v. Denoon, 34 W. Va. 141, 11 S. E. Rep. 1004; Board of Education v. Parsons, 24 W. Va. 553.
      See also, Dearing v. Rucker, 18 Gratt. 426, and note. See monographic note on “Bills of Exception” appended to Stoneman v. Com., 25 Gratt. 887, sec. 7, E.
    
   MONCURE, P.

I think that the Hustings Court did not err in overruling the objection of the plaintiffs to the jurisdiction of the said court at a monthly term thereof, to hear and decide the motion of the defendants to abate the '^attachment, on the ground that the same was issued upon false suggestions, and without sufficient caüse; as mentioned in the first bill of exceptions. A county or corporation court is but one court, though it has both monthly and quarterly terms. The Code, ch. 157, § 16, prescribes the general jurisdiction of such court, declaring, among other things, that it shall have jurisdiction to hear and determine all motions, and other matters made cognizable therein by any statute. Id., l17, declares that certain enumerated subjects, including “such motions as are provided for by the fifth section of chapter 167, and actions at law,' shall ,be cognizable onlj1- at a quarterly term .thereof;” and that “all other matters or things authorized by law to be done by or in such court, may be done either at a monthly or quarterly term.” The motion in this case is one of the subjects expressly .embraced in $ 16, prescribing the general jurisdiction of the court; and is not one of the subjects exclusively assigned to the cognizance of a quarterly term thereof, by % 17. It is, therefore, one of the “other matters or things” which the concluding sentence of that section declares “may be done either at a monthly or quarterly term. ’ ’ But it is argued that as the attachment in this case was issued under the second section of chapter 151 of the Code, in a suit pending in the Hustings Court, of which suit a quarterly term of that court has exclusive cognizance under the Code, ch. 157, § 17, as aforesaid, the attachment is an incident to the suit and inseparable therefrom, and like the suit, is exclusively cognizable at a quarterly term; and therefore, that 'the motion to abate the attachment could not be entertained at a monthly term. But I do not think there is any such necessary or inseparable connection between the attachment and the suit. And I think very great inconvenience and injury might arise from the want of jurisdiction by a monthly term of such a motion, while none whatever *can arise from the existence of such jurisdiction. I am also clearly of opinion that the Regislature intended to give jurisdiction to a monthly, as well as a quarterly term of a county or corporation court in such a case, and that this intention plainly appears throughout the attachment law as contained in the Code, ch. 151. The act of March 19, 1867, Sess. Acts p. 796, cannot affect the case, as the second section of that act provides that until the Criminal Court of the city of Richmond is organized as provided for by the act, the jurisdiction of the Hustings. Court of said city shall remain as it now is; and it appears that such criminal court has not yet been organized.

I am further of opinion that the Hustings Court did not err in hearing and deciding the said motion without the intervention of a jury; as mentioned in the second bill of exceptions. “On a motion, when an issue of fact is joined and either party desire it, or when, in the opinion of the court, it is proper, . a jury shall be impanelled, unless the case be one in which the recovery is limited to an amount not greater than twenty dollars, exclusive of interest..” Code, ch. 167, § 8, p. 704. In this case the plaintiffs and the defendants were requested by the court to state whether they desired a jury to be impanelled to ascertain the issue of fact arising- under the motion. The plaintiffs declined to express any desire upon the subject, and the defendants stated that they did not wish a jury im-panelled, but desired that the matter should be heard by the court without the intervention of a jury; which was accordingly done, the court being of opinion that it was not proper, under the circumstances, to have a jury.

But I am of opinion that the Hustings Court erred in deciding that the attachment was issued upon false suggestions and without sufficient cause, and in rendering judgment that the said attachment be abated as mentioned in the third bill of exceptions.

*The plaintiffs labor under a great disadvantage in this case, in consequence of the manner in which it comes up for revision before this court; that is, upon a certificate of the evidence on which it was heard and decided by the court below. In such a case the appellate court must regard the case as upon a demurrer to evidence, considering the appellant as the demurrant. In this case, there is a great mass of evidence, and a great deal of it is apparently conflicting. But, in my view of the case, there is an ample sufficiency of uncontradicted evidence to entitle the plaintiffs to a judgment in their favor on the defendants’ motion to abate the attachment. I think the question raised by the motion is, whether the plaintiffs, when they sued out the attachment, believed the matters stated in their affidavit as the foundation thereof, to be true, and had sufficient cause for so believing; not whether those matters were in fact true. If they believed them to be true, and had sufficient cause for so believing,,the attachment was then rightfully issued, the conditions on which the remedy was granted having been fully complied with. They cannot be deprived of the benefit of the remedy by its being shown that the matters which they thus believed, and had sufficient cause for believing, to be true, were not in fact true. This, I think, is the necessary construction of the Code, ch. 151, § 22, which gives the defence. “The right to sue out any such attachment may be contested,” is the language with which that section is commenced. This means that it may be contested whether the attachment was rightfully sued out. And this becomes more plain as the section proceeds: “And when the court is of opinion that it was issued on false suggestions, or without sufficient cause, judgment shall be entered that the attachment be abated.” Can it be said that the attachment was issued on false suggestions, when the affidavit on which it was issued states that the affiant believed the matters ^therein stated to be true, and when he had sufficient cause for so believing? My con- j struction is further confirmed by the act of 1840-41, p. 77, ch. 67, $ 1, which was the source, or one of the sources, from which the provision in the Code, ch. 151, § 22, was ; i derived. That act was passed in consequence of the decision of this court in Redford v. Winston, 3 Rand. 148, in which it was held, that where an attachment is issued against the estate of a tenant for rent to become due at a future day, on the oath of the landlord that he has sufficient grounds to suspect that his tenant will remove his effects, &c., it is not competent for the tenant, on the return of the attachment, to plead that his landlord had not sufficient grounds to suspect that the tenant was about to remove, &c. The act provided that in all cages of attachment for rent it should be lawful for the tenant to “contest the right of the landlord to sue out his attachment ; and if it shall be made to appear that the landlord or lessor had not just cause to suspect.that the tenant would move his effects from the leased tenement before the rent was to become due, or that for any other cause an attachment should not have issued, judgment shall be entered for the tenant that the attached effects be restored to him with costs.” Under that act there could have been no doubt but that it was incumbent on the tenant, in order to sustain the defence which it gave, to show, not that he did not intend to move his effects from the leased tenement, but that the landlord had not just cause to suspect such intention. The Code, ch. 151, $ 30, further confirms the same construction; but I will not quote it here. The sedond section of chapter 151 of the Code was intended to afford a substitute for the right which formerly existed to demand bail, which right was abolished by the Code of 1849. That section was not in the original report of the revisors. See their report, 753. When they framed that part of their report, *they had not thought of ; recommending the abolition of imprisonment for debt,' and consequently the right to demand bail in civil actions. Af-terwards, in the progress of their work, they determined to make such a recommendation, as may be seen by reference to their report, p. 840; and as one of the consequences of the proposed change, they recommended an amendment of ch. 151, by inserting therein what is now i 2 of that chapter of the Code. That that section was intended as a substitution for bail for the defendant’s appearance, is also shown by what is said by this court in Pulliam, &c., v. Aler, 15 Gratt. 54. Now, in regard to bail, we know that, in a large class of actions it was demandable of right, and no terms were laid upon the plaintiff in demanding it. He gave no security, and was personally answerable for damages only in an action for maliciously demanding it, without sufficient cause. And in all other personal actions it was demandable by an order of a judge or justice, “upon proper affidavit, verifying the justice of i the plaintiff’s action, and showing probable cause to apprehend that the defendant will depart from the jurisdiction of the court, so that process of execution cannot be | served upon him.” 1 R. C. 1819, p. 499, § 44. There can be no doubt as to the true construction of that section. The same may be said of the bail law of 1852, adopted after the Code of 1849 took effect, and embodied in the Code of 1860, forming' H 33-38 of ch. 151, pp. 652-3. By section 33 the affidavit is required to show, “that there is probable cause for believing that the defendant is about to quit this State,” &c. ; and by section 36, the court in which the case is pending is authorized, after reasonable notice, to discharge the defendant from custody, &c., on being satisfied, not that the defendant was not about to quit the State, but ‘ ‘that there was not probable cause for so believing.” Now there can not be any doubt about the meaning of this section, and *it is not only in pari materia with the one we are now construing, but is a section of the same chapter of the Code with that. What is indifferently called “reasonable cause,” “just cause” and “sufficient cause” in these statutes in pari materia, mean the same thing; and what that meaning is is fully explained by Judge Daniel in the case of Spangler v. Davy, 15 Graft. 381, in which it was held, that justifiable probable ca.use for suing out an attachment against the effects of a debtor is, a belief of the attaching creditor in the existence of the facts essential to the prosecution of the attachment, founded upon such circumstances as, supposing him to be a man of ordinary caution, prudence and judgment, were sufficient to produce such belief. It is not, therefore, a rash belief, formed without due caution, which will be sufficient in such cases; but the belief must be formed on reasonable grounds, after proper enquiry. If the plaintiff use all proper means to ascertain the fact, and after doing so act upon his bona fide belief, founded on reasonable grounds, in suing out the attachment, it cannot be abated on the ground that it was issued on false suggestions, or without sufficient cause, even though it may turn out that he was in fact mistaken. If this be not so, the remedy by attachment is no substitute for the old remedy given by the bail law, and is productive of little or no good, but rather of evil. Its chief effect will be to involve men in trouble, litigation and even ruin.

If these be sound principles, and I think they are, their application to this case must result in the reversal of the judgment. I do not wish to make further comments on the evidence in this case than the decision of it absolutely requires; because, unfortunately, the litigation between these parties will not be ended by this decision. The action at law is yet to be tried, and other actions may possibly grow out of its decision ; none of which actions do I wish, in the least degree, to affect or prejudice. In my ‘own mind, I have no doubt but that the uncontradicted evidence in the case shows that the attachment was not issued on false suggestions, or without sufficient cause, within the true intent and meaning of the Code, ch. 151, § 22; and a sufficient reason may perhaps be assigned for this opinion by briefly referring to a few prominent facts of the case. When the attachment was sued out the defendants were indebted to the plaintiffs in upwards of $48,000; most of the amount being not then due and payable. About $40,000 of the amount [I speak in round numbers, which are sufficiently near the truth for the purposes of the case] were for goods purchased on or about the 4th and 8th days of March, 1867. The amount of these purchases was so great — exceeding by three or four times the amount which had ever before been purchased by and of the same parties in the same time — that the suspicion of the plaintiffs was excited, and one of them (Mr. Bancroft) determined not to deliver the goods without being first satisfied by the defendants that it could be safely done. Accordingly, Mr. Nicholas Steen-bock was sent for by Mr. Bancroft, and they had an interview on the subject, in which the fullest assurances were given by Mr. Steenbock of the solvency of his firm; of the success of their business; that the goods were wanted for the purpose of being sold in their legitimate Richmond trade;- and that the amount would be duly paid at maturity. So well satisfied was. Mr. Bancroft with these assurances, that on the faith of them he delivered the goods; taking defendants’ notes on time, without security. There is no dispute about this evidence of Bancroft. He fortifies it by figures made at the time, in the presence of N. Steenbock, who tacitlj’' admits the truth of it by not denying it, nor even giving any testimony in the case. Julius Steenbock seems also, in effect, to admit the correctness of the evidence of Bancroft as to the communication made to *him by N. Steenbock. Shortly after this heavy sale — less than a month— the plaintiffs hear that the defendants are selling goods at auction in Richmond, and send an agent (Davis) forthwith to this city to 'look after the debt. It turns out that, in the short interval between the time of the sale by the plaintiffs to the defendants early in March, and the visit of Davis to Richmond early in April, 1867, goods to the amount of $48,000 and more had been at different times shipped by the defendants to New Orleans, and to the amount of thirty odd thousand dollars had been at different times shipped by them to Baltimore ; and all of them sold out in those cities at public auction for cash; of course at a leavy loss. And in these shipments all, or nearly all, of the goods bought by the defendants of the plaintiffs for the legitimate Richmond trade were embraced, having been forwarded from Richmond shortly after their arrival from New York • — in many instances in the original packages' — so that, when search was made for the plaintiffs’ goods in the store of the defendants after the levy of the attachment, not one article of them could be found. When, under these extraordinary circumstances, Davis, the agent of the plaintiffs, called on Julius Steenbock for an explanation, he refused to give any! Can it be said that the attachment sued out by the plaintiffs, under these circumstances, was sued out on false suggestions or without sufficient cause? It matters not how the fact was in regard to John Levy and M. M. Levy, the father-in-law and brother-in-law of Julius Steenbock, and the alleged purchasers of the goods shipped to New Orleans. That fact, if true, was unknown to the plaintiffs, and the defendants refused to give them or their agent any explanation. Julius Steenbock says that Davis showed him no letter, of credit from his principals, or the explanation would have been given. But he ought not to have waited for a demand of such an explanation. He knew the goods had been ’'reluctantly delivered by the plaintiffs, and only on the faith that they were to be sold in the legitimate Richmond trade, and he ought not to have changed them from that destination without letting the plaintiffs know why it was done. But surely it cannot be necessary to say anything more, and I wish, for reasons before stated, to say nothing which is not necessary for the purposes of this case.

I am, therefore, for reversing the judgment.

JOYNES, J.

I do not concur in the views which have been expressed by my brother Moncure, in reference to the construction of the twenty-second section of the chapter on Attachments in the Code. As the question is an important one, and of the first impression in this court, I propose' to state briefly my own views in respect to it.

The general policy of the attachment laws is to furnish a stringent remedy against the defendant, under certain circumstances which make such a remedy necessary to secure the rights of the plaintiff. Thus, by the first section, the remedy is given where the defendant is not a resident of this State, but has effects or debts due him within the State; by the second section, it is given where the defendant is removing or intends to remove specific property sued for, or his own estate, or the proceeds of the sale of his property, or a material part of such estate or proceeds, out of this State, so that process of execution in the suit will be unavailing; by the third section, it is given, whether the claim be payable or not, where the debtor intends to remove, or is removing, or has removed, his effects out of the State, so that there will probably not be therein sufficient effects of the debtor to satisfy the claim when judgment is obtained therefor, should only the ordinary process of law be used to obtain such judgment ; and by the fourth section, it is given to a landlord for the recovery of rent, where the tenant intends to remove, or *is removing, or has within thirty days removed, his effects from the leased premises, and where there will not probably be left on the premises property liable to distress sufficient to satisfy the rent when it becomes payable. It is only the necessity of doing justice to the plaintiff, under such circumstances, that authorizes a departure from the general policy of the law, which secures to the debtor the control of his property until judgment has been obtained in the due course of proceeding, and from the general principle, dictated by natural justice and sanctioned by universal law, "that a party shall have notice of all legal proceedings which are to bind either his property or his person.

This extraordinary remed3r is not only harsh towards the defendant himself, but its operation is harsh towards the other creditors of the defendant, over whom the attachment creditor obtains priority. It is susceptible of great abuse, and has often been greatly abused. It is, therefore, closely watched, and will never be sustained unless all the requirements of the law have been complied with. From the necessity of the case, the law accepts an affidavit ex parte as sufficient prima facie evidence of the justice of the claim, and of the existence of the facts alleged as authorizing* the attachment, to justify the issuing of the process in the first instance. If a party sues out such a process recklessly and without having sufficient grounds to justify him in believing that the facts exist upon which it is based, the defendant can obtain redress by an action for damages. But in this action the plaintiff cannot recover, if it appears that the defendant in suing out the attachment acted bona fide, and upon such apparent grounds as justified him in believing that the facts really existed. The case will not be altered though it is made to appear, upon a full development of all the facts, in the trial of the action, that the appearances on which the defendant acted *were altogether delusive, and the inferences which he drew from them without any foundation in fact. Spangler v. Davy, 15 Gratt. 381.

But the Legislature considered that this remedy did not afford an adequate protection against the abuse of this process, and by the twenty-second section provided another. That section provides that ‘1 the right to sue out any attachment may be contested ; and when the court is of opinion that it was issued on false suggestions or without sufficient cause, judgment shall be entered that the attachment be abated.” The remedy thus provided is altogether different from the remedy by action. The object of the latter is to obtain indemnity from the party, and to inflict punishment upon him for wrongfully and maliciously abusing the process,, whereby the plaintiff in the action has been injured and oppressed. The object of the motion is to arrest the mischief by abating the attachment. The question to be tried is the “right to sue out” the attachment; in other words, "whether it was issued “on false suggestions or without sufficient cause. ” In the present case, the ground alleged for the attachment is that the defendants are removing their effects. The plaintiffs insist, that though the defendants may not have been, at the time of suing out the attachment, in the very act of removing their effects, they were engaged in a course of removing them from time to time. If that was so, then a state of facts'existed in which the law gives the remedy by attachment. In the view which I take of the law, the question on the trial of the motion was, whether, upon all the evidence, there was reasonable ground or “probable cause” to believe that the defendant was so removing his effects, and not whether the facts as they appeared to the affiant, though only a small part, perhaps, of the facts of the case, afforded him reasonable ground for such a belief. The decision must be according to the real truth of the *case as ascertained from a full in-' vestigation of all the facts, and not according to .the apparent or probable truth as it seemed to the affiant upon such of the facts as were known to him. I say nothing of the burden of proof, or as to what is to be done on such a motion if no evidence .is offered, or if the -existence of any probable cause is left in doubt. No sucti question has been raised in this case, the defendants in the motion having first introduced their evidence to show the existence of probable cause, and thus assumed the burden of proof. In an action for malicious prosecution, or for maliciously suing out an attachment, the .burden of proof is in the plaintiff to show the want’of probable cause, though it involves the proof of a negative. 1 Greenleaf Ev. § 78. O’Grady v. Julian, 34 Alab. R. 88.

If, on the trial of such a motion, it ap-. pears that there were facts which, at the time the attachment was sued out, afforded reasonable ground to believe that the defendant was engaged in a course of removing his effects, which he had not completed but designed to continue, it is competent for the defendant'to show that the inference drawn from these facts was unfounded, and that the real .truth of the case was otherwise. Thus, if a merchant in Richmond, who has recently come from another State, is found to be packing up his goods and sending them to the wharf, having disposed of the house in which he had been doing business, especially if' the goods are removed at night, there would be reasonable ground to believe that he was removing, or intended to remove, ' his effects out of the State. It would be competent for him to show that, in point of fact, he was only removing his goods to Petersburg, where he had rented or purchased a store, and intended to prosecute his business. Upon that state of proof, it would appear that the.affiant, upon the partial state of facts known to him, had reasonable ground for *suing out the attachment, but that, upon the whole case, there was no ground for the attachment. In such a case, it seems to me, the attachment should be abated. But when the existence of “probable cause,” in the first instance, is thus made out, and the defendant undertakes to repel it by proof that the real truth, is otherwise, he must do so by clear evidence. Unless he can place the fact beyond doubt, the attachment must stand, for then the defendant has failed to overthrow the “probable cause” raised by the evidence.

It remains to enquire, whether this is the true construction of the statute?

The attachment provided for by the first section is given upon affidavit, among other things, that the defendant is not a resident of the State. Upon a motion to abate such an attachment, the enquiry must be, whether or not this averment is true. It is. a matter of fact, capable of definite ascertainment, and the law contemplates the existence of the fact as the ground of the attachment. The phraseology of this section affords no ground for contending that the motion to abate should turn upon the belief of the affiant, and the grounds which he had for such belief.

The third section gives an attachment upon, complaint that the defendant intends to remove, is removing, or has removed his effects out of the State, &c., and an affidavit of the truth of the complaint, to the best of the affiant’s belief. Here again the attachment is given on the ground that certain things exist, and the fact that they do exist is established prima facie by the oath of the affiant. On the motion to abate such an attachment, the enquiry must-be, whether the fact exists on which the attachment was based, wher? the fact is one that admits of definite ascertainment, as that the defendant “has removed” his effects, or whether there was probable cause to believe that he intended to remove, &c., which is only a probable fact, and *not capable of positive ascertainment. The words of this section cannot be construed so as to refer the right to the attachment to the mere belief of the affiant, on probable grounds.. They clearly predicate the right to the attachment on the existence of the facts, actual or probable, which authorize it, and allow- the existence of those facts to be established, for the purpose of suing out the attachment, by the oath of the affiant that he believes them to exist. The same remarks a'pply to the fourth section.

When the fact is such as I have called a probable fact, as that an intention exists to do an act, or that an act will be done in the future, all that we can say of it is, that from evidence presented to .our minds, we infer, conclude or believe that the fact exists, or that it will occur, and that the grounds of such inference, conclusion or belief are sufficient to justify it. If these grounds are sufficient to justify such inference, conclusion or belief, there is sufficient cause for the attachment; for that is the highest degree of certainty of which the nature of the case admits. But if, when we look at all the facts, we find that sufficient grounds did not exist for the inference, conclusion or belief, then we cannot say that such probable fact exists or will occur. In such a case, we cannot say that the attachment was issued on sufficient cause. When, on the other hand, the fact is such a one as has an actual existence and admits of absolute proof, we can affirm that it does exist, and not merely, as in the other case, that we believe it to exist, •or believe that it will occur, and that we have sufficient grounds for our belief. Perhaps this distinction between the two •classes of facts contemplated by the attachment law, may account for the use, in the 22d section, of the two expressions, ‘ ‘on false suggestions” and “without probable cause. ’ ’ But this does not seem to be a matter of any practical importance.

But it is insisted, that the language of the second section *makes the right to the attachment which it provides for, depend altogether upon the belief of the affiant, and that, in reference to an attachment under that section, the only •enquiry under the 22d section is, whether the affiant believed what he swore to, and had present to his mind sufficient grounds to justify that belief, as in an action for wrongfully and maliciously suing out an attachment; in other words, whether he acted honestly and discreetly.

In considering this construction, several observations occur at the outset:

1. It imputes to the Legislature an intention and policy, in reference to attachments under the second section, altogether different from that which it had in reference to attachments under the other sections.

2. It makes the enquiry, on the motion to abate, refer to matters which, in the nature of things, evidence can scarcely reach, namely, the sincerity of the affiant’s belief, and the extent of his information.

3. It affords a most inadequate protection against the abuse of the process, by making a man subject to it, though he proves, to demonstration, that he was not doing, or did not intend to do, the act which renders an attachment proper and necessary, and simply because appearances were against him.

4. It is unjust to the creditor himself, who must lose the benefit of his attachment, though the facts of the case clearly entitle him to it, because the affiant did not happen to know all the facts, or enough of them to justify him in his belief, though he acted honestly, and his belief was in accordance with the real truth of the case.

5. It makes the rights and liabilities of the defendant depend not, as in other cases, upon his own conduct as ascertained by judicial enquiry, but on the plaintiff’s opinion of it, upon imperfect knowledge of the facts, provided the facts known justify suspicion, standing alone.

*1 concede that we must adhere to and abide by the language of a statute where it is clear and unambiguous, and not depart from it upon a conjecture that the Legislature could not have meant what it has plainly said. This has been called the “golden rule.” (20 Eng. L. & Eq. R. 231; 22 Ibid. 209.) But a strict adherence to the words of the statute is only required when the intention is so plainly expressed that it cannot be mistaken. The paramount enquiry is, what was the intention of the Legislature. As a primary rule, the intention is to be collected from the words where they are explicit. But unless the -words are so explici t and peremptory as to exclude all construction, the court will consider not merely the words, but the intent to be collected from the cause and necessity of the act being made, from a comparison of its several parts, and of other acts in pari materia, and even from extraneous circumstances which may throw light on the subject. Dwarris Stat. 693; Fox’s adm’r v. Commonwealth, 16 Gratt. 1; Hawkins v. Gatherlecole, 31 Eng. L. & Eq. R. 305; United States v. Freeman, 3 Howard U. S. R. 556; Sedgwick 236. And in putting a construction upon the provision of the 22d section we must enquire, in accordance with the rules laid down in Heydon’s case, 3 Rep. 7: 1. What was the law before that provision was enacted. 2. What was the mischief and defect against which the previous law did not provide. . 3. What remedy the Legislature provided to cure the mischief. 4. The reason of the remedy.

Eirst, then, as to the language of the law. The second section gives the attachment on affidavit: 1. That the plaintiffs claim is believed to be just. 2. That the affiant believes the plaintiff is entitled to recover so much at the least. 3. That the áffiant believes that the defendant is removing, or intends to remove, his effects, • &c. The affidavit is not required to be made by the plaintiff himself.

*When the allegation is that the defendant intends to remove his effects, all that the affiant can possibly swear to is his belief. So where the allegation is, that he is “removing his effects,” meaning that he is engaged in a course of removing them from time to time, so that, &c., all that the affiant can affirm is his belief. The provision then amounts, in substance, to the same thing as if the statute had said, “upon affidavit that the defendant is removing, or intends to remove.” And how would that differ, in substance, from the third and fourth sections, which give the attachment on complaint that certain facts exist, or will occur, and provided that the truth of the complaint shall be verified according to the affiant’s belief? In one sense, the'law in each case gives the attachment upon the belief of the affiant, and because he believes. But the law does not mean to make the rights of the defendant, in either case, dependent ultimately upon the belief. It means to make them dependent upon the existence of a state of facts in -which it allows the extraordinary remedy by attachment, for the sake of justice and from necessity, and only allows the affidavit to be evidence prima facie of the existence of such facts, so as to authorize the process to issue.

What, then, is the ‘-‘sufficient cause” for issuing such an' attachment, within the meaning of the 22d section? Is it the existence of the probable fact sworn to by the affiant, and which, according to the polic}' of the law, justifies the remedy by attachment ; or is it the mere belief of the affiant that such fact does exist or will occur, entertained honestly and upon reasonable grounds. If we look to the policy of the law, to the analogy of other sections besides the second, and to the object for which the provision of the 22d section was enacted, and do not adhere to the strictest literal interpretation of the mere words, the answer must be, as it seems to me, that it is the former.

*It is obvious from what has been said, that the language does not necessarily require the other construction. It is not so explicit and unequivocal as to prevent our resorting to the ordinary rules of construction to ascertain the intention of the legislature. I have adverted to the policy of the attachment law, and to the construction of the first, third and fourth sections, in connection with the twenty-second, and I need say no more upon those subjects. Let us now consider the construction of the twenty-second section with reference to the rules above suggested in analogy to the rules laid down in Heydon’s case. In Mantz v. Henley, 2 Hen. & Mun. 308, upon an attachment against an absconding debt- or, issued on the ground that the affiant had grounds to suspect and verily believed that the defendant intended to remove his effects, the defendant filed a plea in abatement, which was informal, but the purpose of which was to controvert the facts alleged as the ground for the attachment. The plea was held bad on demurrer, because it was defective in point of form; but Judge Roane regarded it as substantially sufficient : thus conceding the right of the defendant to controvert the facts alleged as the ground of the attachment. In that case, the affidavit alleged that the affiant had grounds to suspect and verily believed, &c. The plea did not take £ssue on these averments of the affidavit, and was not objected to for the failure to do so, but took issue on the facts which the affidavit alleged he believed, and had grounds to suspect. In Redford v. Winston, 3 Rand. 148, Win* ston issued an attachment for rent upon an affidavit that he had sufficient grounds to suspect and verily believed that Redford would remove his effects, &c. Upon the return of the attachment Redford tendered a plea, that Winston has not sufficient grounds to suspect and verily believe that said Redford would remove the effects, &c. The court held that this plea was properly rejected; and *Judge Green intimated the opinion, that in an action against an absconding debtor, the defendant could not plead that the attachment was founded upon a false suggestion, but was left to his action on the attachment bond. And it is worthy of note, that both Judge Green and Judge Carr regarded the plea tendered by Winston as putting in issue the fact of his being about to remove his effects, and not as putting in issue merely the sufficiency of the grounds which the affiant had within his knowledge for his belief. The point decided in Redford v. Winston was, that in an attachment for rent, the ground for issuing the attachment cannot be controverted. In 1 Rob. (old) Prac. 628, the author intimates his disapproval of Judge Green’s dictum in Redford v. Winston.

Thus it appears that before the adoption of the Code, it was settled that, in an attachment for rent, it was not competent for the defendant to controvert the grounds on which the attachment was issued, and that it was doubtful and unsettled whether this could be done in an attachment against an absconding debtor. The twenty-second section was intended to provide a remedy for this defect in the law, and to extend to all classes of attachments the right which, in Mantz v. Henley Judge Roane conceded to exist in respect to an attachment against an absconding debtor. And accordingly, the revisors, in their note to this section, say, in reference to the provision in question: “ This is according to Mantz v. Henley, 2 Hen. & Mun. 308. A different rule as to attachments for rent was laid down in Redford v. Winston, 3 Rand. 148. * * * By the section as proposed by us, an attachment for rent issued without sufficient cause, is placed upon the same footing as any other attachment.”

In support of the construction which I am controverting, reference is made to the act of March 2d, 1827, (Supp. R. C. 256,) and to the act of February 6th, 1841, *(Sess. Acts p. 77,) which are cited in the margin of the Code. The act of March 2d, 1827, provides that it shall be lawful for the tenant “to contest the right” of his landlord to sue out the attachment; and if it shall be made to appear to the court that the landlord had not “just cause to suspect” that his tenant would remove his effects, &c., judgment shall be entered for the tenant, &c. The act of February 6th, 1841, provides to the same effect, and also that judgment shall be entered for the tenant, if it shall appear “that for any other cause an attachment should not have issued. ’ ’ These acts shed not the least light upon the question before us. It still remains to be considered, what is the “right to sue out the attachment’ ’ which may be contested, and whether the ‘ ‘just cause to suspect,” has reference to the actual facts of the case, or only to such of the facts as were present to the mind of the landlord when he sued out his attachment. The act of March 2d, 1827, was evidently passed in consequence of the case of Redford v. Winston, and in order to allow such a defence as was attempted in that case, which, as we have seen, controverted the probable facts alleged as the ground of the attachment, or rather the ground to suspect the existence of those facts, and not merely the belief of the affiant, and the presence to his mind of facts sufficient to justify that belief.

A question analogous to that I am now considering has been decided under the attachment law of Missouri. In Chenault v. Chapron & al., 5 Missouri R. 438, an attachment was issued upon an affidavit that the affiant “verily believed” that the defendant was about to remove his property out of the State. The statute authorized the defendant, in every case of attachment, to file “a plea in the nature of a plea in abatement, putting in issue the truth of the affidavit upon which such attachment was sued out.” The defendant pleaded that he did not intend to remove *his property out of the State. To this plea the plaintiff demurred, and assigned for cause of demurrer that the plea did not deny that the affiant did believe that the defendant was about to remove his effects out of the State. The demurrer was sustained by the court below; but the judgment was reversed by the Supreme Court. Edwards, J., delivering the opinion of a majority of the court, said : ‘ ‘ Whether the affiant really believes the affidavit true or false, is a matter wholly immaterial, except so far as his own conscience is concerned. He may very honestly believe it true, and yet it may be wholly false. It is not, then, the truth of his belief as to the existence of the fact which is to be put in issue, but it is the existence of the fact itself; that is, whether the defendant was or was not about to remove his property out of the State. The belief of the affiant of the existence of one of the causes mentioned in the first section of the attachment law will authorize the issuing of the attachment, but nothing more. On the trial of an issue as to the truth of the affidavit, the fact authorizing the attachment to issue must be found to exist, or the suit will be dismissed. It was not necessary then that the plea should put the affiant’s belief in issue. The frequency of attachments, in cases where credulous affiants merely believed the cause to exist, but where in fact none of the causes authorizing creditors to sue out attachments did really exist, had grown into a great evil, and to remedy this the Legislature passed the last section of the act amenda-tory of the attachment law. In authorizing the plea in abatement, then, the Legislature intended to strike, not at the shadow, but at the substance of the evil; not at the truth or falsehood of the affiant’s belief, a thing that no evidence could touch, but at the truth or falsehood of the facts stated in the affidavit, a thing that was tangible.”

The attachment act of New Jersey gives an attachment ^'against an absconding debtor, “if any creditor shall make oath that he verily believes that his debtor absconds,” &c. The courts of that State hold that it is competent to the court, under the general jurisdiction to prevent the abuse of process, to quash an attachment issued without sufficient cause. In the City Bank of New York v. Merritt, 1 Green R. 131, it was insisted that the affidavit was conclusive; but the Supreme Court of New Jersey' held otherwise. The Chief Justice said: “The plaintiff or his agent may, from wrong information or other causes, very honestly and reasonably fall into error concerning the absconding of the debtor; but the consequences would be pernicious if the debtor was irrevocably fixed by it, and his property wrested from him by force of the attachment. ’ ’ The same was held, by the same court, in Brundred v. Del Hoys, 1 Spencer R. 328; and the court said in that case, that the proceedings should be set aside, though the plaintiff may have acted in good faith in making the affidavit.

It has also been urged that the second section of the attachment law was introduced as a substitute for bail, as was said by this court in Pulliam v. Aler, 15 Gratt. 54. This is supposed to explain why the attachment under that section is given upon the mere belief of the affiant, and to show the propriety of not abating it when sued out honestly and upon reasonable grounds of belief.

There is no doubt that the object, or one of the objects, contemplated by the introduction of this section was to afford a substitute for bail under the former law. But, while that is so, the attachment provided for by it is not governed by the same rules which applied to bail. Bail gave the creditor no security except for the presence of the defendant when a ca. sa. should be issued against him: if the ca. sa. could be executed, the bail was discharged. The attachment gives a security for the debt by a lien on *the property of the defendant. Bail was demandable as matter of right, and without any affidavit, in all actions of debt upon written obligations for the payment of money, and in all actions of covenant and detinue. In all other actions, it might be obtained by the order of a judge or justice of the peace, upon proper affidavit verifying the justice of the plaintiff’s action, and showing probable cause to apprehend that the defendant would depart from the jurisdiction of the Commonwealth. But there was no provision made for discharging the order for bail, or for releasing the bail, upon proof that there was not sufficient ground to apprehend that the defendant would leave the Commonwealth. The defendant, when arrested upon a writ on which bail was required, could relieve himself by a confession of judgment, after which, if he was prayed in custody, he could be discharged upon taking the oath of an insolvent debt- or. Otherwise, he must give bail, or be committed to prison. But the 22d section of the attachment law makes provision for discharging an attachment issued under the 2d section, as well as any other, w’hen issued without sufficient cause. The 2d section gives an attachment in lieu of bail upon the same easy terms upon which bail might be obtained on the order of a judge or justice of the peace ; but there the analogy ceases. The provision for discharging the attachment when issued “without sufficient cause,” to which there was no corresponding' provision in the law respecting bail, destroys all further analog}'. The fact that the attachment was provided as a substitute for bail, is thus deprived of all force in reference to the question I am now considering.

Reliance is also placed upon the 30th section of the attachment law, which is in these words: 1 ‘If upon defence being made, in any case in which, property is seized under an attachment, that the attachment was sued out without sufficient cause, it 'be found either by the court or *by the jury, if one be empanelled, that the defence is well founded, judgment may be entered for the defendant against the ■ plaintiffs for the damages sustained by the defendant by reason thereof.” From this it is argued, that the enquiry upon a motion to abate an attachment on the ground that it was issued without sufficient cause, is the same as in an action to recover damages for suing out an attachment without sufficient cause; and must be confined, therefore, to the good faith and reasonable discretion of the plaintiff or affiant. But I do. not perceive the force of this argument. We have seen that, in the first, third and fourth sections of the .chapter, the right to the attachment is made to depend upon the existence of certain actual or probable facts, the existence of which is sufficiently verified for the purpose of suing out the attachment by the affidavit of the affiant- to the best of his belief. There is no room to contend, upon the language of these sections, that, upon a motion to abate the attachment, the attachment can be sustained upon the ground only that the affiant believed what he swore to, and that he was justified in believing it. And yet, in an action to recover damages, it would be a sufficient de-fence that the defendant acted in good faith and upon reasonable grounds of belief. In such cases, therefore, the enquiry upon a motion to abate is not the same as in an action for damages. Where,Lin such a case, on a motion to abate; or after judgment on such a motion, which seems to be the meaning of the 30th section, damages are claimed under that section, the court, if it tries the case, must distinguish between the grounds of the motion to abate and the grounds of the claim for damages. So if the case is tried by a jury, the court must take care, by proper instructions, to see that the same distinction is observed. And so in reference to an attachment under the-2d section.

*It has been objected that the construction upon which I insist, will render the remedy given by the second section of little value, and deter parties from resorting to it. The only effect of that construction, however, is to abate an attachment whenever it is made to appear that a state of things did not exist at the time it was issued, in which such a remed}' is proper under the law. Is it any objection to the construction, that it will have the effect of confining the remedy to the cases in which the law designed to give it, and of preventing its abuse, by the application of it to other cases, which are not within the reason and policy of the law? The effect upon the policy of the law, and upon the rights of the defendant and of his other creditors, is the same, whether the misapplication of the remedy results from mistake or from design. The construction which I give to the law will not only confine the remedy to the cases which are proper for such a remedy, but it will make parties more cautious i n resorting to it than they would be under the other construction. Is this a just ground of objection, when we consider the harshness of the remedy and its liability to abuse?

Entertaining these views of the construction of the attachment law, and considering the weight which, under the decisions of this court, I am bound to attribute to the judgment of the court below, upon the evidence certified, I feel some doubt whether the judgment in this case ought to be reversed. But my impressions upon this subject are not of so clear and decided a character as to induce me to dissent from the opinion of my brethren, who have no difficulty as to the conclusions which ought to be drawn "from the evidence. I forbear to discuss the evidence, lest any thing I might say might prejudice the trial of the action. I will only add, what is necessary to a distinct expression of my opinion, that I think the undisputed facts of this case show that there was sufficient cause when the attachment ^'issued, to believe that the defendants were removing their estate, or the proceeds of the sale of their property, or a material part of such estate or proceeds, out of this State, so that process of execution on a judgment in the suit, if obtained, would ■ be unavailing. The court below must be taken to have decided upon the evidence that the defendants, in point of fact, were not so removing. The doubt which I have intimated is whether, in view of the weight to be attributed, under the decisions of this court, to the judgment of the court below on this point, we can say That it came to a wrong conclusion in respect to .it.

Upon the whole, I concur in the order which is to be entered reversing the judgment.

RIVES, J.

After the fullest consideration, I am unable to acquiesce in the construction which the President of the court has placed upon the twenty-second section of the attachment law. It confounds the issue under a motion to abate, with the issue in an action on the case for the abuse of this process. In the latter, I might concede to the plaintiff in the attachment, the privilege of defending himself on the question of damages, by proof of justifiable cause for his resort to this 'exceptionable remedy; but when this section explicitly enables the defendant to ‘ ‘contest the right to sue out the attachment,” I can find no warrant in precedent, authority or reason for restricting that contest to the truth or "bona fides of the plaintiff’s affidavit, rather than to the existence of the facts which it purports to verify. Our legislation consequent upon the decision of Redford v. Winston, 3 Rand. 148, shows the intention of the Ivegislature to make the facts or allegations of the plaintiff’s affidavit traversable, and to allow of a defence that did not exist in cases of bail, and that was specially denied in that particular case. But this branch of the case is exhausted by my brother Joynes; and it is *sufficient for me to declare my full and hearty concurrence in his opinion and reasoning upon it.

I do not, however, share his doubts as to the judgment of reversal. In this case, as in Mitchell, &c., v. Baratta, &c., 17 Gratt. 465, I readily resolve all doubts and conflicts of evidence in favor of the judgment below; but I must be permitted to make and follow my own inferences from the plain and undisputed facts of the cause. For reasons already assigned, I refrain from any comment on the evidence. The matter in issue under the motion to abate, was the act of “removing their effects;” and in view of the shipments to Baltimore and New Orleans, and their correspondence with the auctioneers of those cities, I cannot escape the conclusion that the appellees were at the time of the suing out of the attachment in a course of removing their effects, or “a material part” thereof, so that execution upon a judgment thereafter to be obtained would be unavailing.

The judgment was as follows:

The court is of opinion that the said Hustings Court did not err in overruling the objection of the plaintiffs to the jurisdiction of the said court at a monthly term thereof, to hear and decide the motion of the defendants to abate the said attachment on the ground that the same was issued upon false suggestions and without sufficient cause, as mentioned in the first bill of exceptions.

And the court is further of opinion that the said Hustings Court did not err in hearing and deciding the said motion without the intervention of a jury; as mentioned in the second bill of exceptions.

But the court is also of opinion that the •said Hustings Court did err in deciding that the said attachment was issued upon false suggestions and without sufficient cause, *and in rendering judg- • ment that the said attachment be abated; as mentioned in the third bill of exceptions.

Therefore it is considered that the said judgment be reversed and annulled, and that the plaintiffs recover against the defendants their costs by' them expended in the prosecution of their writ of supersedeas aforesaid here. And this court proceeding to enter such judgment as the said Hustings Court ought to have entered, it is further considered that the motion of the defendants to abate the said attachment on the ground that the same was issued upon false suggestions and without sufficient cause be overruled, and that the plaintiffs recover against the defendants their costs by them about their defence to the said motion in the said Hustings Court expended. And it is ordered that this cause be remanded to the said Hustings Court for further proceedings to be had therein. Which is ordered to be certified to the said Hustings Court.  