Blason v. Bruno — 33 Barb. 520

Majority

p. 520

Manuel Blason, and others vs. Santiago Bruno, impleaded, &c.

Headnote

The offense of disposing of property in order to defraud creditors cannot be committed in a foreign country, between foreigners, so as to bring the case within the provisions of the code relating to that subject, and justify the arrest of the debtor.

The section of the code authorizing an arrest where there has been a removal or fraudulent disposition of property was not intended to apply to acts committed by foreigners, in a foreign country. The acts contemplated by that section must he committed within the limits of the state; and if nothing was done here to warrant the conclusion that the removal or disposition was fraudulent, the debtor is not liable to arrest, under our laws.

An affidavit to obtain an order of arrest which states the principal matters relied upon to be on information and belief, is defective.

When such facts are not within the actual knowledge of the plaintiff or his witnesses, information may be stated; but in such a case the sources of the information must be specified.

MoTION to vacate an order of arrest.

The defendant was arrested in this action upon the ground that he had disposed of his property with intent to defraud his creditors. A motion is now made for his discharge, upon the original affidavit on which the order of arrest was granted.

. The disposition of property complained of was the collection of his debts in the island of Cuba and bringing the proceeds to this country, after he had stated to some persons that he intended to go with the money to Havana and. pay his creditors. All the parties were residents of Cuba, and the whole transaction was in Cuba, excepting the arrival of the defendant in this country. The cause of action set up in the papers appears to me to be totally insufficient to sustain the order of arrest.

I do not think the offense of disposing of property to defraud creditors can be committed in a foreign country, between foreigners, so as to bring the case within the provisions of the code on this subject. The parties are not cognizant

p. 521

of or subject to our laws; are not supposed to know .them ; and cannot be said to violate, them. There is nothing in the section of the code referred to, which in any way warrants the supposition that it was intended to apply to acts committed by foreigners, in a foreign country. The removal or fraudulent disposition of property contemplated by that statute must be within the limits of the state; and if nothing is done here to warrant the conclusion that such removal was fraudulent, then the defendant is not liable to arrest, under, our laws.

A different rule exists where the defendant takes the property of another unlawfully in a foreign land and brings it here. In such a case the action is brought for the property, and the right to recover for it here is based not merely upon a fraud committed abroad, but upon the continued possession of the property obtained through such fraud, and then the act complained of forms the cause of action, and not the mere cause for imprisonment.

The affidavit is also defective in stating the principal matters relied upon to be on information or belief. Where such facts are not within the actual knowledge of the plaintiff or his witnesses, information ’ may be stated, but in such a case the sources of the information must be stated, so that the court can see to what extent the information can be relied on, and that it was not communicated for the purpose merely of making the affidavit.

Another defect in the affidavit is, that it no where shows that the defendant did not go to Havana prior to coming to this country. As that was the only fact from which any fraud could be presumed, it should have been shown that the defendant had avoided doing what he had declared to be his intention prior to his collecting his moneys and leaving for the United States.

There are also other objections to the sufficiency of the affidavit in this case ; but as those above mentioned are fatal to the order of arrest, it is not necessary to enumerate them.

p. 522

It may well be inferred that the defendant came to this country and brought his funds with him with the intent to prevent his creditors in Havana from obtaining his property, and if so, it seems but right to aid the creditor in following his debtor to obtain payment; but that can only be done when the creditor brings himself and his debtor within the provisions of our laws. In the present case, the facts disclosed in the plaintiff’s affidavit do not warrant his arrest, and the order therefore must be vacated, and the defendant discharged, in each of the cases before me; the defendant stipulating not to bring any action therefor.

[At Chambers, New York,

May 14, 1861.

Ingraham, Justice.]