Majority
p. 626Benjamin M. Livermore, plaintiff, vs. Thomas Rhodes, defendant. (Before Robertson, Ch. J. at special term, September —, 1864.)
Headnote
Where a debtor refuses to pay his note, on demand, and on being told by the holder that he will be sued, threatens that if he is sued, he will turn over all his property, and that the holder “ will not get a cent,” the property of the debtor is liable, on such threat, to an attachment.Motion to discharge an attachment granted under section 229 of the Code of Procedure. In the affidavits upon which the attachment was issued, it was alleged that the defendant, on being informed, after his refusal to pay a note held by the plaintiff, tha't he would be sued, threatened that if he was sued, he would turn over all his property, and that the plaintiff would not get a cent. This the defendant denied.
Thomas Sadler, for the motion.
Hendrickson & Whipple, opposed.
The defendant does not attempt to explain, but altogether denies, the expressions imputed to him. They evidence an intention (whether from anger, or any other
p. 627
cause, is immaterial) to dispose of property so as to baffle the plaintiff in the speedy collection, of his debt, which, of course, could only be done by illegal" means. (Gasherie v. Apple, 14 Abb. 64 .) Cases in which the only threat was to make merely a lawful assignment, are inapplicable. Two witnesses, who are disinterested, in addition to the plaintiff, prove the use of the language charged; and it is only denied by the uncorroborated evidence of the defendant. His responsibility, character and conduct cannot disprove his utterance of such words. They might show them to be the result of excitement, but the words are denied instead of being explained..
The motion to discharge the attachment must be denied, with #10 costs.