
    John Lorrain, Pl'ff in Error. vs. John Higgins, Administrator, &c., Def't in Errror.
    In a proceeding by attachment, undor the Statute, the party plaintiff must, in his affidavit, set forth the fasts aud Circumstances of the ease, and his own belief as to thoir truth, and those facts and circumstances must be such as to shew with certainty, that the party defendant is within the letter and plhiri meaning of the Statute. •.
    Whore an affidavit alleged that the defendant was making secret preparations to leave for Ireland without any ostensible business to ■ take him there, it Was held not to be such a fact, as that the Court could conclude that he was in reality making preparations to abscond. The naked fact alleged, without disclosing the nature and character of the preparations to go abroad, or a fixed intent, by so doing, to defraud Ms creditors, furnishes no sufficient evidence, • upon which to authorize the issuing an attachment. ■
    
      Eriror to the Circuit Court of La Fayette County.
    This was a proceeding'by attachment, under the statute", founded on a promissory'note. The affidavit made by thé Plaintiff, upon which "the attachment issued, was'as follows;
    Wisconsin Territory, ) 'La Fayette County. $ ss°
    John Lorrain, of lawful age, being'first duly sworn, deposes and says, That William Mead, of the county df La Fayette aforesaid, is justly indebted to him (this dépo-" "neat) in the sum of one hundred and thirty-one dollars ' and thirty-cents, after allowing all just offsets and credits, upon a demand founded upon or sounding in contract, to-wib — upon a promissory note, which 'said note is in the words and figures 'following, 'to wit:
    “131,30.
    “ One day‘after date I promise to pay to John Lor- “ raid, or his order, one hundred and thirty-one 'dollars “ and thirty cents for váiue received.
    This deponent says, That he has good reasqn 'to believe, and does believe, that the said William Mead ig about to depart from the Territory of Wisconsin with indent to abscond, knd that the circumstances upon which the belief of such facts is founded are that the said Mead is making secret preparations to leave this country for Ireland, a portion of the 'British dominions, without any ostensible business to take him there; and as a further circumstance this deponent says that the said William Mead, 'some time in the nidnth'of July last past, on or about the eighth day thereof, 'took out a license from the Board of County Commissioners of La Fayette county aforesaid to keep a grocery and to sell strong and spirituous liquors and wines in his grocery house in the village of Shullsburg, in the county of La Fayette, aforesaid, and that he has procured one John Higgins to take his said grocery and sell liquors and wines as aforesaid, and .under the aforesaid license; and this deponent further saya that h.e has understood from various individuals that the said Mead has been making arrangements to leave for the aforesaid place; and this deponent further says that he verily believe.s that unless a writ of attachment is issued he is in danger of losing his said demand. And further this deponent says pot.
    JOHN LORRAIN.
    After the attachment was executed by the Sheriff and the appraisal made, and the proceedings returned into 'Court, the defendant made a motion to quash the attachment, and assigned the following causes for that purpose, io-wit:
    1st That there is no sufficient affidavit, to authorize the issuing thereof.
    2d. That there are no faets set up in the affidavit, on mhich the affidavit issued, on which an issue can be taken.
    3d. That tlte facts set ,up in the affidavit, are not sufficient to warrant the belief that William Mead w;as about to abscond; or to justify the order for the issuing the attachment.
    The Judge granted the motion and quashed the attachment
    The counsel for the plaintiff in error excepted to the ruling and decision of the Judge, and the cause came here upon a writ of error for that cause.
    
      J. II. Knowlton, for plaintiff in Error.
    
      Robinson 8f Culver, for defendant in Error.
    
      ' On the hearing before this Court, the counsel for the Plaintiff in error made the following points and argued therefrom, to-wit:
    1st. A motion to dismiss or quash a writ of attachment ought not to be entertained, when the affidavit upon which the same is allowed is colorable and would give the Court jurisdiction were there no appearance by the defendant. The defendant should be put to a traverse of the facts set forth in the affidavit or to a plea in abatement. —Vide Session Laws. 1842, page 22., See. 4, Burrilts Practice Vol. 2d, 273.
    2d. In this case the plaintiff sets forth the only true distinguishing circumstance of the fact that, defendant Mead was about to abscond, to-wit — That he, was making secret preparations &c. — Vide Webster’s Diety,wm-d Abscond.
    3d. In order to warrant a court in dismissing a cause, the incipient proceedings should be so defective that q judgment would be an absolute nullity, unless the irre* gularity is waived by defendant.
    4th. When a suit is dismissed the Cou,rt has no power, unaided by statute, to render a judgment far hosts against the plaintiff or. appellant. — Vide the p.eople ex red. Mollard vs. the Judges of Madison county., 7 Cowen’s Rep’s, 423; J. J. Marshall’s Rep’s, 39.
    On the part of the defendant in error the counsel made and argued the following points, to-wit:.
    1st. The affidavit in this case is fatally defective in this, that it does not set out any distinct fact authorizing the issuing of a W-rit of Attachment — it is confused, qncerr tain and contradictory. The only positive, averment is, that said Mead is making secret preparations to leave this country for Ireland. It is not avered that he, Mead,- intends to abscond or to remain in Ireland and not return, 'nor is it avered that he, Mead, is in any way making 'away with or disposing of his property, but on the contrary, "the affidavit sets out that he, Mead, has procured one Jo’hn Higgins to sell his Wines and Liquors, in his, Mead’s grocery house, under his, Mead’s license. No ■other construction could bé given to this statement, than that the property was Mead’s and Higgins was acting as 'his agent, for its 'Sale, and liable to the payment of Mead’s 'debts.
    2d. This affidávií is not üüch an ode as perjury could be assigned upon, this is necessary. Vide, Mét'rill vs. Lowe; Burnett? s R:, 59.
    3d. Proof that is legal evidence of some fact author-ising the issuing of the writ is necessity- — Vide’Morrisoñ vs. Ream, Burnetts R., 86; 1st. Cowen’s Treat. 530, 31, 32; Smith vs. Luce-, 14th Wen. 420; 10th Wen.; 237; 20 id. 77. Brown vs.Hinchman; 9th John 75. Vanstenburg vs. Roitz 10th id. 169. Cosb'urg vs. Welsh 11th id 175.
    As to the first point urged by the Plaintiff in Error, it is submitted that this Court is asked to give á strained construction to the act of 1842, and that the right of the defendant to traverse this affidavit does not deprive him of his rights to have the writ quashed if the affidavit which is the foundation of the action is defective— Vide Morrison vs. Ream, supra..
    
    4th. As to the second point urged by the Plaintiff in Error, the word abscond in its legal sense and the sense •in which it is used by the legislature in the Attachment Law means an intention to leave, first disposing of all property to the fraud of creditors. The affidavit in this cause contains no such allegations. See Session Laws 1842, Page 31.
    5th. In support of the 3d point no authorities are cited, and it is believed th^t none can be found; on the contrary all the authorities above cited hold a different doctrine.
    6th. It will bo found tha¡t the case cited in 7th Cowm, 423, is not analogous. In that case the common pleas hever obtained jurisdiction, no .regular appeal bond having been filed; but in an attachment a colorable affidavit gives jurisdiction till objections are duly made — Vide authorities above cited; see also 14th John, 246.; 17th id. 145,
   By the Court.

Larraree, J.

This is one of a numerous class of cases, under the attachment law of the late Territory — :but now repealed by the Revised Statutes, of the State.

The first question is upop the sufficiency of the affidavit upon which the writ of attachment issued. It states that the. defendant “is making s,ecret preparations to. leave this country for Ireland;” and that he, has procured a third person to manage his Grocery business. The Statute required the plaintiff to swear to his own belief of the intent to abscond, and to set forth the facts and circumstances upon which that belief was founded. Now the mere statement that $ie defendant was, in the opinion of the plaintiff, making secret preparations to leave for Ireland, is not such a, fact as would 'authorize the Court to conclude that he was in reality making preparations to abscond. It is apparent that no, fact has been stated, for we ask at once — r.what were those preparations'! What has the defendant done to, warranf the conclusion that he intends to abscond ?

The plaintiff might have been entirely in error as to the character of these preparations; and still the Court could not conclude that such preparations had in fact been made. Preparations might have been made for a different object — the farthest removed from an intent to abscond — in fact with an intent to fix his residence more permanently in the state; and the plaintiff clamorous for his debt, and open to view with jealous eye, every movement of his debtor, might be ready to swear at once that these preparations were evidence, to his mind, of an intent to abscond. The plaintiff should have stated what the facts were constituting what he calls “ preparations,” that the Court might know whether there was sufficient legal evidence upon which his belief was founded.

Another point presented, and the only one remaining that is necessary to decide, is whether upon the dismissal of the suit for the insufficiency of the affidavit, the Court could render judgment against the plaintiff for costs.

As a general rule, it is well settled that where there is no jurisdiction the Court can give only the costs of the motion, and not the general costs of the suit. But it was the uniform practice of the late Territorial District Courts to give costs in similar proceedings; and we are not disposed at this late day, to overrule this doctrine; and especially as we are not, in view of the repeal of this law, called upon to lay down a rule for the future. The affidavit in this case, was colorable at least, and sufficient to give the Court jurisdiction to render judgment for full ’’©os.ts.

Judgment affirmed;  